Ireland - High Court, 11 October 2011, J.T.M. v Minister for Justice, Equality and Law Reform, [2011] IEHC 393
Keywords:
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Actors of protection
Description
"Actors such as: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; who take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection." |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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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. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
This case concerned the meaning of the term “serious harm” in the Qualification Directive (as transposed into Irish law). The Irish state refused to grant the applicant subsidiary protection on the basis that the term imputes the absence of State protection, if the fear of harm is from non-state actors. The applicant argued that this was incorrect.
Facts:
The applicant fled Nigeria because of a fear of her husband, who abused her due to her infertility. She was subjected to a ceremony which involved a ‘traditional healer’ cutting her, rubbing medicine into the cuts, and raping her. She fled her village and went to Benin city, where she was trafficked to Ireland. On arrival she realised that she was going to be forced to work as a prostitute and fled from the car she was being transported in by the trafficker. She was refused asylum on appeal to the Refugee Appeals Tribunal on grounds that she could avail of internal protection.
The applicant then applied for subsidiary protection, and was refused by the Minister, on the basis that she had not shown that she was at risk of “serious harm”. Although it was clear the applicant had been tortured, the Minister took the view that the term ‘serious harm’ means that an applicant must demonstrate that the harm feared emanates from the State, or from non-state actors (where the State cannot provide protection). The Minister was of the view that the applicant had failed to demonstrate this.
Decision & reasoning:
The Court held that the applicant had raised an arguable case that the Minister had misinterpreted the Regulations giving effect to the Qualification Directive. The Court stated that the matter is not entirely clear, as the Regulations are drafted in such a way as to be open to both the interpretation contended for by the applicant, and by the respondent, however the applicant could show an arguable case, and so leave for judicial review was granted on this ‘difficult question’.
The applicant also advanced a second ground of challenge, based on her medical condition (sickle cell anaemia), however the Court noted that there was evidence of accessible treatment in Nigeria, and did not feel the situation came within the exceptional grounds of D v UK in the European Court of Human Rights.
Outcome:
Leave for judicial review was granted in respect of the subsidiary protection point, and was refused in respect of the medical point.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - Albatross Feeds Ltd v Minister for Agriculture and Food [2007] 1 IR 221 |
| Ireland - BUPA (Ireland) Ltd v Health Insurance Authority [2008] IESC 42 |
| Ireland - Environmental Protection Agency v Nephin Trading Ltd. [2011] IEHC 67 |
| United States - Maher v An Bord Pleanala [1998] ILRM 198 |
| Ireland - MEO v Minister for Justice, Equality and Law Reform (Unreported, High Court, 25 September 2011) |