Ireland – High Court, 9 October 2009, U.O. v Minister for Justice, Equality and Law Reform & Anor, [2009] IEHC 451
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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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union 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 applicant complained that the refusal to recommend refugee status at first instance contained errors such that on appeal the “core claim” was effectively being heard for the first time, and further the subsidiary protection assessment was not in compliance with statutory requirements which gave effect to the Qualification Directive; and that he should have had a chance to comment on country of origin information used in the assessment of his application.
Facts:
The applicant, a native of Nigeria, claimed to have been persecuted by the Ozu ethnic group due to his refusal to join them. He stated he was unable to access state protection because he was afraid to.
The first instance decision maker found there were serious credibility issues, among which were that, based on available country of origin information, there would have been state protection available to him, and he would have been able to relocate in Nigeria to avoid the source of the threat.
The applicant argued that he should have had the opportunity to rebut country of origin information relied on; that he was not afforded proper procedures in relation to a subsidiary protection assessment in that he was entitled to a two stage assessment with an appeal; and that the credibility assessment errors made by the decision maker at first instance were so fundamental that an appeal would essentially amount to a first hearing of his “core claim”.
Decision & reasoning:
The Court refused to set aside the decision, restating that credibility assessment is the task of the protection decision makers and the Court will not intervene by way of judicial review so as to substitute its own assessment on that issue; this can only be done on appeal (to the Refugee Appeals Tribunal).
There were no fundamental errors of law incapable of remedy otherwise than by judicial review.
General country of origin information which is consulted after an interview to verify issues which have arisen as a result of the applicants account does not have to be put to the applicant; however the Court was of the view that where specific country of origin information discloses contradictions with the applicants personal history, it may be that the decision maker has an obligation to put this to an applicant.
This did not however apply in this case, and the information relied on was capable of being rebutted on appeal.
In relation to the subsidiary protection assessment the Court held that the Qualification Directive did not preclude a two stage process of investigation and appeal and that the Directive was fully satisfied by an asylum process where mistakes at first instance are capable of being remedied on appeal, and the final decision is the relevant one.
Outcome:
The Court refused to set aside the decision to refuse to recommend refugee status at first instance.
Observations/comments:
Ireland does not have a single procedure for the examination of subsidiary protection applications.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - EAE and OPE v RAT and Minister for Justice, Equality and Law Reform [2009] IEHC 5 |
| Ireland - F.O. v Minister for Justice, Equality and Law Reform and Anor. [2009] IEHC 300 |
| Ireland - Kayode v. Refugee Applications Commissioner (Unreported, Supreme Court, 29th January, 2009) |
| Ireland - Radzuik v Minister for justice Equality and Law Reform (Unreported, High Court, Cooke J. 29 July 2009) |