Ireland - High Court, 27 January 2009, E.P.I., N.A.I. & T.I. v Minister for Justice, Equality & Law Reform, [2009] IEHC 61

Facts:

The first applicant was the mother of the second and third applicants, who were minors. All three were in fear of their lives because of a dispute with her husband’s family, who wanted to perform Female Genital Mutilation (‘FGM’) on the second and third applicants. It was an accepted fact that the first applicant’s eldest daughter had died in Nigeria after FGM. The applicants were refused refugee status at first instance, and on appeal, at the Refugee Appeals Tribunal. They were issued with Deportation Orders, and were unsuccessful in their judicial review of the decision to make the Orders. The applicants then applied to the Minister to exercise his discretion to allow them to apply for subsidiary protection under Reg 4.2 of the European Communities (Eligibility for Protection) Regulations 2006. The Minister refused. The applicants then applied for judicial review and were granted leave – this case was the full hearing of that application.

Decision & reasoning:

The Court outlined the framework in Irish law, which is that the Minister is not obliged to consider an application for subsidiary protection arising after a Deportation Order has been made; but there is a residual discretion to do so (following the case of NH and TD v Minister for Justice, Equality and Law Reform [2007] IEHC 277, if there are exceptional circumstances, such as new or altered circumstances.

Although the applicants had submitted new documentation and other evidence in support of their claim to be at risk of serious harm, the Court accepted the respondent’s argument that the material was not significantly different such that it could be considered “new” or “giving rise to altered circumstances”. The Respondent’s duty under Reg 4.2 is a limited one, as the individuals involved have been already refused refugee status. The duty is limited to assessing whether the application discloses “a significant change in material circumstances to those pertaining at the time of the making of the Deportation Order” (para. 41). Here, the additional information merely served to amplify and partly corroborate the applicants’ account (already rejected through the legal process), but did not show any new circumstances.

The Court did not consider that Art 3 EHCR availed the applicants, as a consideration of whether the applicants would be at risk of ill treatment breaching that Article must have already been undergone when the Minister considered s.5 Refugee Act 1996 (prohibition of refoulement), prior to making the Deportation Orders.

Outcome:

Judicial review was refused.