CJEU - AG Opinion in Case C-348/16 Sacko, 6 April 2017

Friday, April 7, 2017

On 6 April 2017, Advocate General Campos Sánchez-Bordona gave his opinion in Case C-348/16 Sacko v. Commissione Territoriale per il riconoscimento della Protezione internazionale di Milano (Italy), related to the interpretation of the recast Asylum Procedures Directive (APD) with regards to the need to afford an applicant a further opportunity to be heard before the appellate authorities when the judicial review is deemed manifestly unfounded and the administrative authorities have already conducted a full examination of the lodged application, including by means of interviewing the applicant during the first instance proceeding. The Italian government submitted that even though its domestic legislation does not explicitly foresee the possibility of a hearing before the appellate authorities, it does not prohibit the judge to hear the appellant if this is deemed necessary.

According to AG Campos Sánchez-Bordona, the “right to be heard in person”, as a species of the genus “right to a hearing”, has its place in the administrative stage of the asylum procedure. However, at the judicial stage, the applicant has the right to set out (and, to that extent, to be heard) before the court the arguments in support of his claim, a right which cannot be equated to the right to be heard in person. Therefore, a remedy should be considered effective under Article 45 APD when the applicant (normally, through his legal adviser or other counsellors) is able to set out before the judicial authority the reasons why the contested decision is unlawful and if the judge is able to assess whether that decision is well founded. In the AG’s view, the “right to be heard” by a judicial authority does not include a presumed ‘right to be interviewed’ during the judicial proceedings. However, Member States should give the courts the opportunity to hear the applicant in person if it considers it necessary in order to carry out a full examination of the factual and legal circumstances of the asylum application as required by APD.

In sum, the AG suggests the CJEU to interpret the recast APD as allowing the competent judicial authority to decide appeals brought against a rejected asylum application without the need for a further personal interview of the applicant, when (1) the appeal is manifestly unfounded and (2) the decision is adopted after carrying out a full examination of the application in points of fact and law, including information contained in the personal interview conducted at the administrative stage.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Effective access to procedures
Effective remedy (right to)
Manifestly unfounded application
Procedural guarantees