Ireland - High Court, 6 October 2011, S.L. v Minister for Justice Law Reform, Ireland and the Attorney General, [2011] IEHC 370
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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:
The Procedures Directive does not apply to subsidiary protection decisions when a Member State, such as Ireland, does not have a unified asylum procedure.
Facts:
The applicant applied for declaratory relief of the legality or adequacy of the State’s transposition of the Procedures Directive. The applicant submitted that Irish law does not state, as required by Article 4.1 of the Procedures Directive, who is the competent authority for dealing with matters of asylum. No other facts or circumstances relating to the applicant are given in the decision.
Decision & reasoning:
The Court found that the Procedures Directive applies only to applications for refugee status when a Member State, such as Ireland, has a two stage process in which the claim for refugee status is determined first and then the subsidiary protection claim.
For member states with what is described by the Judge as a single combined procedure (i.e. all member states bar Ireland), the Procedures Directive applies to refugee and subsidiary protection decisions.
The Court found that Member States must achieve common minimum procedural standards in the asylum process, but are not obliged, to apply those standards to subsidiary protection. For this reason alone therefore the Court concluded that the application must fail.
Even if the Procedures Directive did cover subsidiary protection decisions in a two stage process (such as Ireland’s), the ‘determining authority’ that is required by Article 4.1 of the Procedures Directive is the Minister for Justice and therefore the application for judicial review would also fail.
Outcome:
Application for judicial review is dismissed.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
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| CJEU - C-339/87 Commission v Netherlands |
Follower Cases:
Other sources:
European Commission, Report from the Commission to the European Parliament and the 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, COM(2010) 465