Ireland - Supreme Court, 9 July 2010, Izevbekhai & Others v Minister for Justice Equality and Law Reform, [2010] IESC 44
Keywords:
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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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 case involves consideration by the Supreme Court of Ireland of whether or not the Minister for Justice has a discretion to consider an application for subsidiary protection from a person who has a deportation order made prior to the 20.10.2006, the date on which the law transposing the Qualification Directive came in to effect in Ireland. The Court overturned a decision of the High Court and stated that the Minister for Justice does not have discretion to consider an application for subsidiary protection from a person with a deportation order prior to the 20.10.2006.
Facts:
The applicants were a Nigerian family who had arrived in Ireland in January 2005. After unsuccessful applications to the Office of the Refugee Appeals Commissioner (ORAC) and the Refugee Appeals Tribunal (RAT) they were issued deportation orders in November 2005.
On the 10 October 2006 the European Communities (Eligibility for Protection) Regulations 2006 (which transposed the Qualification Directive) which allowed for persons to make an application for subsidiary protection, became law.
The applicants made an application to judicially review the deportation orders which was unsuccessful in March 2008.
On the 03.03.2008 the applicants made an application for subsidiary protection on the grounds that two female children would be subject to female genital mutilation.
European Communities (Eligibility for Protection) Regulations 2006 Regulations state that “The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).”
On the 19.03.2008 the Minister refused the application stating that the Minister did have a discretion to accept and consider an application for subsidiary protection from an applicant who does not have an automatic right to apply, i.e. a person who has a deportation order dated prior to the 10 October 2006 and that person has identified new facts or circumstances which demonstrate a change of position from when the deportation order was made. In this case the Minister stated that discretion would not be exercised.
The applicants applied for judicial review of the Minister’s decision. In January 2009 the High Court refused to grant judicial review of the Minister’s decision as the applicants had not provided new or altered facts or circumstances from when the deportation order was made.
The applicants appealed to the Supreme Court who invited submissions on the preliminary issue of whether Regulation 4 (2) does in fact and in law confer on the Minister a discretion to grant subsidiary protection to persons in respect of whom a deportation order had been made and notified prior to the 10.10.2006.
Decision & reasoning:
A majority of the Supreme Court (4 out of 5 judges) decided that Regulation 4(2) of European Communities (Eligibility for Protection) Regulations 2006 does not give the Minister any discretion to consider applications for subsidiary protection from persons not stated in Regulation 3 of that instrument.
Regulation 3 lists the Regulations as applying to the following decisions (a) recommendation under section 13(1) of the 1996 Act; (b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act; (c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates; (d) a determination by the Minister under Regulation 4(4) or 4(5).
The decision of the High Court in N.H. and T.D. v. Minister for Justice, Equality and Law Reform was wrong in deciding that the Minister does have discretion under Regulation 4 (2) to consider an application for subsidiary protection from a person not covered by Regulation 3.
The Court stated that Regulation 4 (2) is in negative form and states what the Minister is not obliged to and therefore does not speak to what the Minister is obliged to do.
Outcome:
As the Supreme Court found that there was no discretion under Regulation 4 (2) the matter did not proceed to a substantive hearing.
Subsequent proceedings:
Izevbekhai and Others v. Ireland, Application no. 43408/08: European Court of Human Rights, 17 May 2011
Observations/comments:
In Izevbekhai & Others v Minister for Justice Equality & Law Reform [2010] IESC 44 (09 July 2010), Denham J (now Chief Justice) gave a dissenting opinion to that of the majority of the Supreme Court in this case. Denham J stated that the wording of Regulation 4 (2), while not obliging the Minister to consider an application for subsidiary protection from a person to whom Regulation 3 does not apply, is not excluded from considering applications from those category of persons.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen |
| CJEU - C-105/03 Pupino |
| CJEU - C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA |
| Ireland - Carmody v Minister for Justice [2005] IEHC 10 |
| Ireland - I & Others v The Minister for Justice, Equality and Law Reform [2008] IEHC 23 |