A.A.F. v Office of the Refugee Applications Commissioner
| Jurisdiction | Ireland |
| Judge | Ms Justice Faherty |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] IEHC 286 |
| Docket Number | [RECORD NO 2015/583 JR.] |
| Court | High Court |
| Date | 23 February 2018 |
[2018] IEHC 286
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[RECORD NO 2015/583 JR.]
AND
Asylum, Immigration & Nationality – Certiorari – Subsidiary protection – Deportation – Council Directive 2004/83/EC – S. 17(7) of the Refugee Act 1996, as amended – The European Union (Subsidiary Protection) Regulations 2013
Facts: In the present application, the applicant sought an order of certiorari against the decision of the first respondent for not considering the applicant's application for subsidiary protection. The applicant argued that the second named respondent should have consented to the applicant's application under s. 17(7) of the Refugee Act 1996 on the basis that the applicant would be at risk of both prosecution and serious harm if he was deported. The applicant contended that the impact of the refusal of both the subsidiary protection and the application under s. 17(7) was that the applicant had been left without the possibility of applying for protection in the State. The applicant contended that he was left without an effective remedy and was unable to exercise his rights under Council Directive 2004/83/EC.
Ms. Justice Faherty dismissed the applicant's application. The Court held that the judgment in Izevbekhai was a clear authority that the 2006 Regulations did not apply to the applicant. The Court, however, held that the applicant had the benefit to apply for state protection under various legislations and thus, he had the right to an effective remedy under the relevant statutes.
On 23rd November, 2015, by order of the High Court (Mac Eochaidh J.) the applicant was granted leave to seek judicial review by way, inter alia, of an order of certiorari of the decision of the first named respondent dated 17th June, 2015, not to consider the applicant's application for subsidiary protection. A short extension of time was required for the commencement of these proceedings which the court was satisfied to grant.
The applicant is a Somali national. Having been refused a declaration of refugee status in Ireland in December, 2005, he made representations pursuant to s. 3 of the Immigration Act 1999 ('the 1999 Act'). He was granted permission to remain in the State 'as an exceptional measure' on 9th August, 2011.
On 5th January, 2015, the applicant applied for subsidiary protection. On 16th January, 2015, the Refugee Applications Commissioner ('the Commissioner') drew the applicant's attention to the judgment of the High Court in A.A. v. Minister for Justice [2014] IEHC 607, and advised him that the Commissioner was precluded from accepting his application for subsidiary protection because he had been refused refugee status before the coming into effect of the European Communities' (Eligibility for Protection) Regulations 2006 ('the 2006 Regulations') on 10th October, 2006.
On 23rd January, 2015, the applicant's solicitors responded arguing that the Commissioner retained a discretion to admit a late application for subsidiary protection from persons in the applicant's position so as to give effect to Article 18 of Council Directive 2004/83/EC ('the Qualification Directive') By letter of the same date, the applicant's solicitors wrote to the Ministerial Decisions Unit of the Irish Naturalisation and Immigration Service ('INIS') in the second named respondent's department, again arguing that the Commissioner or the second named respondent, or both, must have a discretion to admit a late application for subsidiary protection 'in order to comply with the requirement of effective implementation of the right to subsidiary protection in Directive 2004/83/EC.'
The Commissioner replied on 5th February, 2015, reiterating the position that as the applicant had been refused refugee status in December, 2005, he was precluded from making an application for subsidiary protection.
By direction of the second named respondent, on 12th February, 2015, INIS wrote to the applicant's solicitors advising that in the event that the applicant had a protection issue he wished to have investigated, it would be open to him to seek to be re-admitted to the asylum process pursuant to s. 17(7) of the Refugee Act 1996, as amended ('the 1996 Act'). The response of the applicant's solicitors to this suggestion was that readmittance to the asylum process was not the appropriate remedy and that the applicant wished to exercise his right to subsidiary protection under the Qualification Directive.
However, on 2nd April, 2015, the applicant duly made an application pursuant to s. 17(7) of the 1996 Act, stating that he was constrained to do so by virtue of the refusal of the Commissioner to accept his application for subsidiary protection. It was argued that the second named respondent should consent to the s. 17(7) application on the basis, inter alia, that the applicant was a Somali national from a minority clan and that he would be at risk of both persecution and serious harm if he were returned to Somalia. As an indicator of new elements for readmittance to the asylum process, the applicant furnished the second named respondent with country of origin information. It was also submitted on his behalf that 'the subsidiary protection regime established in 2006 should also be considered a "new element" relating to [the applicant's] entitlement to protection in the State'
The s. 17(7) application was refused on 9th June, 2017.
On 12th June 2015, the applicant's solicitors wrote to the Commissioner advising that since both the subsidiary protection and the s. 17(7) applications had been refused, the applicant had been left without the possibility of applying for protection in the State. Accordingly, the Commissioner was requested, on an exceptional basis, to accept the application for subsidiary protection.
The Commissioner responded (the impugned decision) on 17th June, 2015, advising as follows: -
'As previously stated in our correspondence of 16th January 2015 and 05 February 2015, the Commissioner is not in a position to accept an application for Subsidiary Protection
As you are aware, with effect from 14th November 2013, responsibility for processing all existing and future subsidiary protection applications transferred from the Irish Naturalisation and Immigration Service (INIS) to the Office of the Refugee Applications Commissioner (ORAC) under the European Union (Subsidiary Protection) Regulations 2013 ( SI No. 426 of 2013). Section 3 of the Regulations provides for a system of the investigation and determination of applications for subsidiary protection in the State which involves the processing of:
1. applications for subsidiary protection made to the Minister ... prior to the commencement date of the 2013 Regulations, which have not been determined, and
2. new applications for subsidiary protection made from 14th November 2013. This relates to applicants that have been issued with a decision to refuse a declaration of refugee status by the Minister, since the regulations came into effect on 14th November, 2013, together with notification that they may make an application for Subsidiary Protection to the Office of the Refugee Applications Commissioner within 15 working days from the date of the notification, in accordance with Regulation 34 of the European Union (Subsidiary Protection) Regulations 2013.
Therefore, I wish to advise that the Commissioner is not in a position to accept an application for Subsidiary Protection from [the applicant] as such an application would not come within the categories mentioned at 1. and 2. above. ORAC can only process applications for Subsidiary Protection for which it has been given jurisdiction by the Minister, otherwise it would be acting ultra vires.'
The first respondent again made reference to the decision of Barr J. in A.A. v. Minister for Justice.
The applicant's solicitors had also written to INIS on 12th June, 2015, in respect of the refusal to readmit the applicant to the asylum process. They argued that the impact of the decision was that the applicant was also left with no possibility of applying for subsidiary protection and that he was therefore 'totally excluded from seeking the State's protection – notwithstanding that he is a member of a category of persons ... who are ... granted protection in Ireland as a matter of routine.' It was stated that the applicant was left 'without an effective remedy and unable to exercise his rights under Council Directive 2004/83/EC.'
This letter was treated by the second respondent as a request for a review of the s. 17(7) decision. The applicant's solicitors made further representations in respect of the s. 17(7) review on 14th August, 2015. It was submitted, inter alia, that 'even if not entitled to refugee status [the applicant] is entitled to subsidiary protection on the basis that there is an internal armed conflict in Somalia' and that 'in order that effect should be given to Directive 2004/83/EC, [the applicant] must be given consent to make a subsequent application for refugee status in order to facilitate the making of an initial application for subsidiary protection.' The second named respondent was referred to 2014 country of origin information which described the extent of armed conflict in Somalia. It was submitted that in light of the real risk of serious and individual threat to the applicant's life by reason of indiscriminate violence in Somalia, 'he must be readmitted to the refugee process.'
On 21st September, 2015, the refusal to admit the applicant to the asylum process was upheld. This refusal is not challenged in the within proceedings. However, it is argued on the applicant's behalf...
To continue reading
Request your trial