ASA v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 24 November 2022
• Neutral Citation: [2022] IESC 49
• Court: Supreme Court
• Docket Number: [RECORD NO.: 2021/70]

Between:

ASA

Appellant

and

Minister for Justice & Equality

Respondent

[2022] IESC 49

O'Donnell C.J.

MacMenamin J.

O'Malley J.

Baker J.

Hogan J.

[RECORD NO.: 2021/70]

THE SUPREME COURT

International protection – Leave to remain – Judicial review – Appellant seeking leave to remain – Whether the International Protection Act 2015 precludes international protection officers from making leave to remain decisions

Facts: The appellant, a national of Nigeria, entered the State in December, 2018, and unsuccessfully claimed international protection. On the 2nd March, 2020, the appellant was notified by letter from the International Protection Office that an international protection officer (IPO) had recommended that he should not be given a refugee or subsidiary protection declaration. That decision was made pursuant to s. 39(3)(c) of the International Protection Act 2015. Included was a notice pursuant to s. 49(5) of the 2015 Act which informed the appellant that, having considered his application, the respondent, the Minister for Justice and Equality, had decided, pursuant to s. 49(4)(b) of the 2015 Act, to refuse him permission to remain in the State. The High Court granted the appellant leave to seek judicial review of the Minister’s refusal of leave to remain on 8th July, 2020. The challenge was based primarily on the alleged conflict of roles, as based on the Carltona principle (Carltona Ltd v Commissioner of Works [1943] 2 All ER 560), referring to the power of officials to act in the name of the Minister. Burns J dismissed the judicial review challenges ([2021] IEHC 276). The Supreme Court granted leave to appeal directly in a determination ([2021] IESCDET 115) that identified two issues: first, whether the 2015 Act itself precluded IPOs from making leave to remain decisions; and second, whether, by exercising their devolved powers under s. 49 of the 2015 Act in dealing with leave to remain decisions, IPOs were in conflict with the duties and functions they were mandated to carry out in the area of international protection under the 2015 Act.

Held by MacMenamin J that there was nothing in the findings of the High Court to indicate that the appellant did not receive an independent, impartial and objective determination in relation to the leave to remain application. MacMenamin J held that the findings were based on the evidence adduced there and were not a sufficient basis for the Supreme Court to draw any adverse conclusion in relation to the integrity of the s. 49(4) decision made in the case. He held that there were no findings from which an inference could be made that the decision made in the appellant’s case was flawed as a result of some procedural issue. MacMenamin J noted that while the High Court judgment determined that the 2015 Act did not establish the International Protection Office, and that it was not a legal entity, it went on to observe that it was clear that such office did have a de facto existence, that correspondence issued from it notifying applicants for international protection of the outcome of their application, together with the outcome of the Minister’s permission to remain consideration pursuant to s. 49(4) of the 2015 Act. MacMenamin J held that neither the evidence, nor the High Court judgment, supported a contention that there had been some fundamental departure in terms of procedure or substance between the procedures operated under the Refugee Act 1996, and those in being in the 2015 Act. He affirmed the High Court judgment. On the basis of the High Court findings and the law, he held that there was no conflict of roles or functions as alleged. He held that the Carltona principle remained in effect and in force as a matter of Irish law. He found that the presumption derived from that principle did not assist the appellant, where there were no express or implied words to be found in the 2015 Act which provided a basis that the presumption was to be rebutted or dis-applied. MacMenamin J held that there was nothing in the Act, or in the procedure adopted in the leave to remain decision concerning the appellant that gave rise to any finding of unlawfulness under EU law. MacMenamin J held that the appellant’s case that the decision was made by an unauthorised officer of the Minister must fail. MacMenamin J found that there was nothing to suggest that the decision-making in the appellant’s case denied him any procedural or substantial right to which he was entitled.

MacMenamin J dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 24 ^th day of November, 2022

Introduction

1 The International Protection Act, 2015 (“the Act of 2015” or “the Act”) established new procedures for persons applying for asylum in this State. The Act identifies two categories of international protection which may take the form of asylum or subsidiary protection. Alternatively, if unsuccessful in applying for either category of international protection, applicants may still be granted leave to remain in the State by the Minister for Justice. All these matters are now dealt with on the basis of information provided in one singular process. In this appeal, the appellant contends that the manner in which the respondent (“the Minister”) operated this new system under the Act of 2015 creates a conflict of roles between International Protection Officers (“IPOs”), who administer the international protection system, and civil servants who are officials of the Minister, who deal with the leave to remain process. International protection involves the application of EU legal principles, now embodied in the 2015 legislation. Leave to remain decisions, on the other hand, are governed by national law, and are determined by officers of the Minister; provision for this is also contained in the 2015 Act.

2 At its simplest, the appellant's case is that the alleged conflict of roles derives from the possibility that IPOs, who administer the international protection system might also be asked to consider leave to remain applications. In this appeal and another linked matter, MK (Albania) v. Minister for Justice & Equality (“ MK”), the appellants staged a two-pronged attack on how the system is operated. In addition to this alleged conflict of roles argument, MK deals with a further broad question, that is, the right of an unsettled migrant to consideration of their constitutional or Convention rights prior to deportation.

3 This judgment outlines:

• (i) the circumstances and the procedure adopted.

• (ii) the High Court judgment and findings.

• (iii) The appeal to this Court.

• (iv) The law applicable.

• (v) Textual analysis of the Act.

• (vi) Application of the Carltona principle.

• (vii) Interpretation in accordance with EU law.

• (viii) Ruling of 5 ^th February, 2022.

• (ix) Conclusion on EU law argument.

• (x) The Refugee Act, 1996.

• (xi) Conclusion and Summary

(i) The Circumstances and Procedure

4 The applicant in this appeal is ASA. He is a national of Nigeria. He left that state in December, 2016. He travelled to Germany on a visa and lived there for two years. He did not apply for international protection whilst in Germany. He entered this state in December, 2018, and unsuccessfully claimed international protection.

5 What follows is now a broad description of the procedures sufficient to understand the chronology. On the 2 ^nd March, 2020, the appellant was notified by letter from the international protection office that an IPO had recommended that he should not be given a refugee or subsidiary protection declaration. This decision was made pursuant to s.39(3)(c) of the 2015 Act. A “Report to assist in the preparation of” the s.39 decision was signed by “E.S., International Protection Officer”. An additional document entitled “Report pursuant to s.35(12) of the International Protection Act” accompanied those two sets of documents. This third report was divided into two parts and had a dual purpose: first, to set out any additional information which, in the opinion of the IPO was relevant concerning the application, and second, to provide any information relevant to a voluntary return to country of origin or a leave to remain application (ss. 48 and 49 of the Act respectively).

The Order Challenged

6 Also included was a notice pursuant to s.49(5) of the Act which informed the appellant that, having considered his application, the Minister had decided, pursuant to s.49(4)(b) of the 2015 Act, to refuse him permission to remain in the State. This “refusal decision” was accompanied by a “Statement of Reasons” made under s.49(5) of the Act signed by Ms. S.N., described as “Case Worker, International Protection Office”. This document concluded with a paragraph headed “Decision”, which stated that, having considered the applicant's family and particular circumstances, and his right to respect for private and family life, he should not be given permission to remain in the State under s.49 of the 2015 Act. The High Court granted the appellant leave to seek judicial review of the Minister's refusal of leave to remain on 8 ^th July, 2020. The challenge was based primarily on the alleged conflict of roles, as based on the Carltona principle, referring to the power of officials to act in the name of the Minister.

7 For reasons that will become clear later, it is necessary to point out that the appellant did not raise any claim to the international protection process followed in his case. His challenge was confined to the leave to remain decision.

(ii) The High Court Judgment and Findings

8 In the High Court, Tara Burns J. dismissed the judicial review challenges ( ASA v. Minister for Justice, [2021] IEHC 276). She made a series of findings as to how the procedure actually operated within the Department of Justice. She held that the officials in what is termed the “International Protection Office” of the...