Case summaries

This was a decision on an injunction application in the course of judicial review proceedings challenging a subsidiary protection decision and deportation order on the basis of a failure by the Minister to cooperate with the applicant in processing the subsidiary protection application and that the failure to provide a mechanism of appeal against a refusal of subsidiary protection  breaches the principal of equivalence in European Union law in that the procedure under the (Irish) 2006 Regulations is inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum.

The (injunction) application was rejected on the basis that it was only since the requirements of the Procedures Directive, and, in particular, the deeming provision of its Annex 1, became effective in Irish law (in 2007) that the recommendation of the Commissioner fell to be considered as the first instance determination by a “determining authority” with an appeal to the Refugee Appeals Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it is only because of the manner in which the State has adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive for asylum (refugee) applications pursuant to Article 3.1. Furthermore, without a unified system for both applications the minimum procedural standards provide for in the Procedures Directive do not apply to a separate and discrete subsidiary protection application.

In relation to the ‘co-operation’ point the Court found that a claim of non-compliance with such a duty of “co-operation” or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts. The applicant in this case eschewed the need to identify any particular finding in the Subsidiary Protection determination which might have been corrected or altered had the applicant been consulted upon it.

Unlike the Procedures Directive, Article 4.1 of the Qualifications Directive refers to the duty of co-operation in respect of the “application for international protection,” that is, the claim to asylum and the claim to subsidiary protection. Article 14.2 of the Procedures Directive recognises, however, that the report of the personal interview with the applicant on which the decision of the determining authority on an asylum application is based, may be communicated to the asylum seeker after the decision has been adopted. The Court found that it would be inconsistent with these arrangements that the duty of cooperation in Article 4.1 should be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision in relation to a subsidiary protection application to an applicant for prior comment. Furthermore, the duty to co-operate provided for in Article 4.1only applies to those elements of the claim described in Article 4.2. 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.

This case concerned the meaning of the term “serious harm” in the Qualification Directive (as transposed into Irish law). The Irish state refused to grant the applicant subsidiary protection on the basis that the term imputes the absence of State protection, if the fear of harm is from non-state actors. The applicant argued that this was incorrect.

The Procedures Directive does not apply to subsidiary protection decisions when a Member State, such as Ireland, does not have a unified asylum procedure.

The Palestinian applicant’s claim was rejected by the authorities as he was not found to be credible. However, the court held that the security situation in the West Bank needed to be reexamined on the basis of the latest country of origin information to assess if the applicant would face a risk of torture or inhuman treatment upon return.

The applicant, from Iran, had not been politically active in Iran but participated in demonstrations in Sweden and appeared with his photo on dissident websites and TV. The applicant was considered to have been engaged in low-level political activity. Thus, he was deemed not to be of interest to the Iranian authorities and was therefore not considered to be a refugee or in need of subsidiary protection on “sur place” grounds.

If an applicant has serious criticism of a language test conducted to determine their country of origin, the Migration Board must investigate the grounds before making a decision, or at least respond to the applicant's criticism so that the submission can be completed.

If the Migration Court considers a language test report to be unreliable or inadequate, it can decide to request a new language analysis or return the case to the Migration Board for further investigation, but cannot choose to ignore the analysis entirely.

The applicant was eligible for subsidiary protection as an internal armed conflict is taking place in Logar. The applicant, in case of return to Afghanistan, could not relocate to Kabul, since he could not secure his livelihood there. In order to secure his livelihood, he could not rely on property which his family had possessed in the province of Logar.

Young Nigerian women, especially those coming from the region of Benin City (State of Edo), who were forced to prostitute themselves in Europe in a transnational network of human trafficking, and who managed to extricate themselves from this network and to stop this forced activity, should not be seen as members of a particular social group in Nigeria. However, they face inhuman or degrading treatment in case of return to their country of origin and should therefore be granted subsidiary protection.

The administrative authorities, when carrying out an assessment of whether a subsequent application for refugee status is inadmissible (based on the same grounds), should compare the factual basis for the administrative case on which a final decision has been made with the testimony of the foreignor provided in the subsequent application and should also examine whether the situation in the country of origin of the applicant and also the legal position have changed.

At issue in this case was whether the applicant qualified for subsidiary protection or protection for humanitarian reasons, considering her personal circumstances of extreme vulnerability.