Ireland - High Court, 2 February 2012, N.D. v Minister for Justice and Law Reform, [2012] IEHC 44
Keywords:
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Personal interview
Description
"The process of questioning or talking with a person in order to obtain information or determine the personal qualities of the person. An interview is a common step in the adjudication of an application for refugee or other immigration status.” An applicant for asylum must be given the opportunity of a personal interview subject to the provisions of the Asylum Procedures Directive: - A personal interview must normally take place without the presence of family members unless considered necessary for an appropriate examination. - It must be conducted under conditions which allow applicants to present the grounds for their applications in a comprehensive manner and which ensure appropriate confidentiality. - the person who conducts the interview must be sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so - interpreters must be able to ensure appropriate communication between the applicant and the person who conducts the interview but it need not necessarily take place in the language preferred by the applicant if there is another language which he/she may reasonably be supposed to understand and in which he/she is able to communicate. - Member States may provide for rules concerning the presence of third parties at a personal interview. - a written report must be made of every personal interview, containing at least the essential information regarding the application as presented by the applicant - applicants must have timely access to the report of the personal interview and in any case as soon as necessary for allowing an appeal to be prepared and lodged in due time." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
Two main issues are addressed by the Court:
Is the Minister required to re-examine a negative credibility finding by the Office of the Refugee Applications Commissioner (ORAC) when such is disputed in the subsidiary protection application but has not been the subject of an appeal determination by the Refugee Appeals Tribunal (RAT) in the refugee status determination procedure?
Does Regulation 4(5) preclude the Minister from taking any steps in the preparation of a deportation order prior to a final determination of the subsidiary protection application?
Both issues are answered by the Court in the negative.
Facts:
The Applicant is a Nigerian national whose application for refugee status was based on his claim that the deputy governor of a Nigerian state was determined to find and kill him for the murder of the governor’s son, of which the Applicant is innocent. The ORAC rejected his claim as lacking credibility and an appeal to the RAT was lodged but subsequently withdrawn on legal advice as the Applicant could not establish a nexus between the fear of persecution and a protected Convention ground.
An application for subsidiary protection was lodged based on the same facts and rejecting the credibility findings of ORAC. This application was refused and a deportation order was made in respect of the Applicant. The Applicant then applied for leave to seek judicial review quashing the decisions to reject the subsidiary protection application, and the subsequent deportation order.
Decision & reasoning:
As the Applicant had withdrawn his appeal against the negative decision of the ORAC, the disputed findings on his lack of credibility were not the subject of re-examination by the RAT. The Applicant thus sought to have the Minister reopen and reconsider those findings in the context of the subsidiary protection application, and invited him to determine the subsidiary protection application on the basis of the explanations then offered as to why the Applicant should have been believed. In the view of the Court, this argument is not well-founded because it fails to “appreciate the essential procedural character of the international process which forms the basis of the common asylum system of the European Union”. The Court held that the Minister is obliged to take into account the findings made in the asylum process in determining the subsidiary protection application because "the process remains... a continuing and coherent examination of the status of the Applicant in international and European Union law." The Court found that there is no obligation on the Minister to decide whether the Applicant should be considered plausible or credible in the light of explanations given in the application for subsidiary protection; at least in the absence of new evidence, information or other basis capable of demonstrating that the original findings were vitiated by material error on the part of the decision makers.
However, the Court did find that the nature of the split system in Ireland may give rise to instances, even if rare, in which an Applicant will seek to rely upon a risk of harm from a source not previously considered in the asylum process and in such cases it will fall to the Minister to assess that claim as it is made. Where this requires an evaluation of credibility, “it may well be that the principle of fair procedures will require the decision-maker to interview the Applicant for that purpose,” and the 2006 Regulations do not preclude this. This does not arise in the present case where, in effect, the Minister was being asked to reconsider the issue of credibility and come to a different conclulsion. Disputes as to findings of fact must be challenged by way of appeal to the RAT.
Referring to O.O. & Anor. v MJELR, the Court rejected arguments by the Applicant that Regulation 4(5)of S.I. 518 of 2006 read in conjunction with Regulations 2 and 3 precludes the Minister from any consideration of the making of a deportation order until after the subsidiary protection application has been definitively determined. The first step in the deportation process has in fact already begun when the Minister notifies the failed asylum seeker that he proposes to make a deportation order in the letter sent under section 3(3)(a) of the Immigration Act 1999, prior even to the submission of the subsidiary protection application. The subsidiary protection application ‘interrupts” the deportation process and, once that application is negatively determined, Regulation 4(5) requires the Minister to resume the consideration of his original proposal to make a deportation order.
Submissions that the determination of the Minister was flawed in that it was ambiguous because it was unclear whether the Minister had proceeded on the basis of accepting the Applicant’s account of events or not, were rejected by the Court “in the light of the express terms of the determination”.
Outcome:
The application for leave to seek judicial review was dismissed.
Observations/comments:
The question of whether the Minister may be obliged to conduct oral interviews for the purposes of subsidiary protection decisions, was subsequently dealt with by the High Court in M.M. v Minister for Justice and Law Reform & Ors. [2013] IEHC 9, which referred Case C-277/2012 to the CJEU. The Court held that if a credibility finding adverse to the applicant was to be made which was separate and distinct from that made during the asylum process, then an interview may be required but it doubted that an interview would be required in all cases.
Follower Cases:
| Follower Cases |
| Ireland - High Court, 11 September 2012, Barua v Minister for Justice and Equality, [2012] IEHC 456 |