Ireland - High Court, 23 January 2009, V.O. v Minister for Justice, Equality and Law Reform & Anor, [2009] IEHC 21
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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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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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:
This concerned whether the Office of the Refugee Applications Commissioner (ORAC) were required to make an assessment of subsidiary protection, and whether ORAC were obliged to examine country of origin information in every case. The court found that ORAC were not required to make a subsidiary protection assessment. The Court held that ORAC were not obliged to examine country of origin information in every case.
Facts:
Mr. O was a native of Nigeria. He came to Ireland in 2006. His wife had come to Ireland in 2003 leaving behind their three children, and had given birth here in 2003. The three other children travelled from Nigeria to Ireland with an agent in 2006, prior to the applicant doing so.
The applicant stated that in 1993, on his deathbed, his father in law, a chief of the Ogboni aboriginal cult, had decreed that the applicants wife’s fourth child was to be sacrificed. He learned of this when his wife was pregnant with her fourth child in 2003, (they having married in 1996), when her older brother approached the applicant and told him.
His wife therefore left Nigeria and travelled to Ireland. In 2005 the applicant was told by the cult that he either had to join them or be killed for arranging that his wife leave Nigeria. Joining the cult was abhorrent to him given their practices. He left Nigeria in 2006 and travelled to Ireland where he claimed asylum. He had no identifying documentation on arrival.
ORAC rejected his application on credibility grounds, without reference to any country of origin information. Neither had the applicant submitted any country of origin information.
ORAC in their report further stated that it had considered the European Communities (Eligibility for Protection) Regulations 2006 (subsidiary protection) in their assessment of the application. They also stated in their report that “to examine the well-founded nature of the applicants claim it is necessary.... to assess credibility with reference to relevant country of origin information”, even though they had not done so.
Mr. O sought to have the decision of ORAC set aside by the High Court on the basis that it was required that ORAC consider country of origin information in reaching their decision, and that it was insufficient for ORAC to state in their decision that they had considered the European Communities (Eligibility for Protection Regulations 2006 without actually applying the regulations.
Decision & reasoning:
The Court refused to set aside the decision of ORAC. The Court found:
That it was no part of ORAC’s statutory functions or powers to consider subsidiary protection, and indeed this was precluded.
That it was not a hard or variable rule that country of origin information had to be considered by ORAC. The Court stated “there are always circumstances where a decision on credibility can be arrived at without consulting country information”.
That “as the story of alleged persecution was found to be simply not credible, there was no obligation on the Commissioner to seek out country of origin information, especially in the extraordinary situation where the applicant produced absolutely no documentation himself”.
The Court criticised the use of “a formulaic style decision” by ORAC in that they referred to the necessity of considering country of origin information where they did not in fact do so.
Outcome:
The High Court refused to set aside the decision of ORAC to refuse to recommend refugee status.
Observations/comments:
Ireland does not yet have a single procedure for the examination of subsidiary protection applications.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 5 |
| Ireland - Refugee Act 1996 - Section 13 |
Cited Cases:
| Cited Cases |
| UK - Horvath v Secretary of State for the Home Department (Immigration Appeal Tribunal) [1999] INLR 7 |
| Ireland - B.F. v The Minister for Justice, Equality and Law reform [2008] IEHC 126 |
| Ireland - C.M (Unreported), High Court, Clark J. 26 November 2007 |
| Ireland - Imafu v Refugee Appeals Tribunal [2005] IEHC 416 |
| Ireland - Kramarenko v Refugee Appeals Tribunal [2005] 4 IR 321 |
| Ireland - P.I.E. v Refugee Appeals Tribunal [2008] 1EHC 339 |