A.A.D.(Somalia) v The Chief International Protection Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 May 2018
• Neutral Citation: [2018] IEHC 337
• Docket Number: [2017 No. 594 J.R.]
• Court: High Court
• Date: 14 May 2018

BETWEEN

A.A.D. (SOMALIA)

APPLICANT

AND

THE CHIEF INTERNATIONAL PROTECTION OFFICER

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2018] IEHC 337

[2017 No. 594 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial Review – Asylum - Deportation - Subsidiary protection - Order of certiorari - Limitation - European Communities (Eligibility for Protection) Regulations 2006 - Illegal Immigrants (Trafficking) Act 2000 - Qualification Directive 2004/83/EC

Facts: The applicant was originally from Somalia. He applied for asylum upon entering Ireland in April 1997. His application was refused and a first proposal to deport was made by the second named respondent. This was superseded by a decision made on 16th January 2007 that granted permission to the applicant to remain within the State and which lapsed in 2010. A second proposal to deport was made on 21st September 2011, which was followed by a deportation order on 30th August 2012. On 9th December 2013, the applicant applied for subsidiary protection under regulations 3 and 4 European Communities (Eligibility for Protection) Regulations 2006. On 16th April 2015, the Refugee Applications Commissioner stated that the application could not be accepted because these regulations had been revoked in 2013. On 21st September 2017, the European Union (Subsidiary Protection) Regulations 2017 were introduced allowing certain applicants to make a subsidiary protection claim. This did not include this applicant because he had not got a notice under reg. 4(1)(a) of the 2006 regulations as his application for asylum had been refused prior to the implementation of those regulations. The applicant submitted a further application for subsidiary protection to the first named respondent who refused to consider the application. The applicant obtained leave to apply for judicial review of this decision.

The applicant argued that he was entitled to bring an application for subsidiary protection under either the European Communities (Eligibility for Protection) Regulations 2006 or the qualification directive 2004/83/EC

Held by Humphreys J. that if the applicant wished to argue that his deportation order was flawed, he should have brought a challenge in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Instead, the applicant had sought to argue that the deportation order could not have been made because he had at that time a valid subsidiary protection application pending. The applicant had in effect attempted to circumvent s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

In any event, it was further held by the Court that the applicant could not make an application for subsidiary protection at the relevant time because the applicant's asylum application was refused before the implementation of the 2006 regulations. Similarly, the subsidiary protection entitlement under the qualification directive 2004/83/EC did not apply because its implementation also post-dated the refusal of asylum. His application for subsidiary protection was therefore not valid. It was also held that the application was out of time because a reiteration of a previous decision was not a new decision such as to restart the clock for judicial review. The first refusal to process the application for subsidiary protection was made in 2015. As such, the limitation period to bring a judicial review began then.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of May, 2018

1 The applicant arrived in the State on 14th April, 1997. On 21st August, 2000, he was refused asylum. The fact that he was refused prior to the commencement of the qualification directive, 2004/83/EC, is an important factor in this case.

2 At the same time as the asylum refusal, the Minister made a first proposal to deport the applicant.

3 On 10th October, 2006, the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006) came into force. Regulation 4(1)(a) of the 2006 regulations provides that a notification of a proposal under s. 3(3) of the Immigration Act 1999 shall include a statement that, where a person to whom s. 3(2)(f) applies (that is someone who is refused asylum), he or she may apply for subsidiary protection within a 15 day period (see para. 55 of the judgment of Fennelly J. in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44 (Unreported, Supreme Court, 9th July, 2010)). This does not create a right for an applicant as such; rather it creates an obligation on the Minister to give a notice to an applicant following which the time limit for the right to apply for subsidiary protection would begin to run.

4 The applicant was granted permission to remain on 16th January, 2007, which superseded the first proposal to deport. In April, 2007, he was arrested on a charge of a possession of drugs for sale or supply. In November, 2007, he was sentenced to six years' imprisonment. In March, 2011, he received an additional one-year sentence for violent disorder while in prison.

5 In 2010, his permission to remain expired. On 21st September, 2011, a second proposal to deport was made. That was not based on s. 3(2)(f) of the 1999 Act, but rather on s. 3(2)(a) of the 1999 Act, namely that he was serving a term of imprisonment.

6 On 30th August, 2012, a deportation order was made which recited that s. 3(2)(f) (refusal of asylum) applied. That was notified on 7th September, 2012.

7 On 14th November, 2013, the 2006 regulations were revoked by the European Union (Subsidiary Protection) Regulations 2013 ( S.I. No. 426 of 2013).

8 On 9th December, 2013, the applicant purportedly applied for subsidiary protection under regs. 3 and 4 of the 2006 regulations. However, those regulations had been revoked at that point.

9 In January, 2014, the applicant was released from prison. On 9th February, 2015, he requested that his alleged subsidiary protection application be processed as a matter of priority.

10 On 16th April, 2015, the Refugee Applications Commissioner stated that the application could not be accepted. That decision was not challenged. On 19th June, 2015, the applicant wrote to the Minister and the Commissioner, submitting that the subsidiary protection application should be processed.

11 On 25th June, 2015, the Minister reiterated that it could not be so processed. The Commissioner reiterated that on 2nd July, 2015.

12 On 20th October, 2016, the CJEU gave judgment in Case C-429/15 Danqua v. Minister for Justice and Equality. On 9th March, 2017, the deportation order was amended to add in an alias for the applicant. Again, s. 3(2)(f) of the 1999 Act was relied upon. That amended order was not challenged.

13 On 21st September, 2017, the European Union (Subsidiary Protection) Regulations 2017 ( S.I. No. 409 of 2017) were made implementing the judgment in Danqua and allowing 30 days from 2nd October, 2017 for certain applicants to make a subsidiary protection claim. That did not include this applicant because he did not get a notice under reg. 4(1)(a) of the 2006 regulations: see reg. 3(3) of the 2013 regulations.

14 On 12th June, 2017, the applicant submitted that on the basis of Danqua, the application had to be accepted. On 17th June, 2017, the International Protection Office stated that it was not prepared to process the application. This fourth refusal was much the same as the previous three refusals and it is the fourth one that is now challenged. The applicant submits, in effect, that the fourth refusal restarts the clock for judicial review.

15 On 24th July, 2017, leave was granted in the present proceedings by O'Regan J.

16 Separately from the foregoing, the s. 3(11) application made on 9th December, 2013, was refused on 7th September, 2015, and a further s....