Ireland - High Court, 12 October 2011, A. v Minister for Justice, Equality and Defence [2011] IEHC 381

Facts:

The applicant was a national of Sierra Leone who had left that country for Nigeria as a child in the 1960s. He came to Ireland in 2006 and sought both refugee and subsidiary protection status in Ireland on the basis of events that had occurred in Nigeria. Both applications were rejected by the Minister primarily on the basis that the applicant was actually a citizen of Sierra Leone and had not indicated that there was any risk of persecution or serious harm in that country. Shortly after rejecting the subsidiary protection application, the Minister then made a deportation order against the applicant. This was challenged by way of Judicial Review to the High Court but the challenge was really to the subsidiary protection decision making process (if the subsidiary protection decision was quashed the deportation order would have to be revoked).  The procedural problems identified by the applicant were

a) that, contrary to the provisions of Article 4.1 of the Qualification Directive, the Minister had not cooperated with him in any way in determining the subsidiary protection application and, in particular, had not provided a draft report of critical findings which the applicant could try to address before a final decision was made;

b) that the lack of an appeal against a subsidiary protection decision meant that the subsidiary protection procedures were inferior and not equivalent to the asylum procedures under the (domestic) Refugee Act.

Decision & reasoning:

The Court (Cooke J.) refused an injunction preventing deportation on the basis that there was not even ‘a fair issue to be tried’ in the Judicial Review. This, in effect, means that the Court decided that the proceedings had no reasonable prospect of success. 

In relation to the appeal point, the Court found that the scope of the Procedures Directive is defined in Article 3.1: “This Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status”. Accordingly, except where a Member State employs a single or unified procedure covering both forms of protection, the Procedures Directive imposes no minimum procedural standards in respect of the processing of applications for subsidiary protection and, therefore, that there is no right to an ‘effective remedy’ by appeal.

In relation to the “co-operation” point arising from Article 4.1, of the Qualification Directive, the Court found that although, under the (Irish) 2006 Regulations, the subsidiary protection application is made after the asylum process has concluded (including any appeal to the Tribunal), the exercise involved in determining the application is essentially the same. It involves considering whether, having regard to the fact that the claim so far as has been found to be established does not qualify refugee status, it nevertheless comes within the scope of subsidiary protection.

The Court went on to find:

“There is no deficiency in the 2006 Regulations by reason of the absence of any express repetition of the words “in co-operation with the applicant” in relation to the distinct assessment of an application for subsidiary protection. It is to be noted that the expression used in Article 4.1 of the Qualifications Directive in relation to the assessment of “the relevant elements” of “the application for international protection” covers the elements relevant to both forms of international protection. Those elements are described in Article 4.2. They consist of the “the applicant’s statements and all documentation at the applicant’s disposal regarding the applicant’s age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection”.

18.These are, in effect, the basic facts and documents relating to the applicant’s personal history and to the basis of the claim and they are primarily considered and assessed in the asylum process including any appeal. The “co-operative” nature of the first instance assessment phase is reflected particularly in, for example, the initial interview of an arriving applicant under s. 8(1) of the Act; the duty and function of the Commissioner to investigate the application under s. 11(1); the interview of the applicant under s. 11(2) and the powers of the Commissioner to make all necessary inquiries and obtain information; and by the reciprocal duty of an applicant to co-operate in the investigation under Article 11C of the Act. While in an appeal to the Tribunal against a negative recommendation the onus lies with the appellant, the continuing investigative and co-operative character of the second phase is reflected in the power of the Tribunal under s. 16(6) to request the Commissioner to conduct further inquires or supply further information.

19. This explains why, in the view of the Court, Article 39 of the Procedures Directive requires the availability of the “effective remedy” only in respect of the decisions in the asylum process and (by virtue of Article 3.3) in respect of decisions in a unified procedure.“

Outcome:

Injunction refused

Subsequent proceedings:

The injunction decision has been appealed to the Supreme Court but the applicant may be deported in the meantime. The case itself will remain in the Court list. It may take up to 2 years to get a hearing date.

Observations/comments:

While this decision appears to rule out any future challenge to the subsidiary protection procedures, the Court did find that that the Minister is not wholly relieved of any obligation of co-operation in appropriate cases. The process of determining the application must conform to the normal rules of fair procedures. These include the principle audi alteram partem (hear the other side) Accordingly, if in a given case new facts, information or documentation not previously examined in the asylum process are put before the Minister and are material to the claim for subsidiary protection, that principle would require the Minister to afford an applicant an opportunity of comment or rebuttal if the refusal of the application was to be based, for example, upon a finding that the information was untrue or the documents were forged. This is is not dependent upon any express reiteration of the word “co-operation” in the 2006 Regulations. The problem in this case was that the audi alteram partem was made as a purely academic point divorced from specific facts. The applicant didn’t and didn’t want to identify any particular finding in the Subsidiary Protection Determination which would have been corrected or altered had the applicant been consulted upon it.

Other sources:

European Commission, Report from the Commission to the European Parliament and Council on the
application of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in
Member States for granting and withdrawing refugee status, Brussels, 8.9.2010. COM(2010) 465 final