ASA v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 16 April 2021
• Neutral Citation: [2021] IEHC 276
• Docket Number: Record No. 2020/382 JR
• Court: High Court
• Date: 16 April 2021

Between:

ASA

Applicant

and

The Minister for Justice

Respondent

[2021] IEHC 276

Record No. 2020/382 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Permission to remain – International Protection Act 2015 s. 49 – Applicant seeking an order of certiorari quashing a decision refusing permission to remain pursuant to s. 49 of the International Protection Act 2015 – Whether the manner in which the International Protection Act 2015 is operated by the respondent has incorrectly blurred the distinction between international protection and permission to remain decisions

Facts: The High Court, on 8 July 2020, granted leave to apply by way of judicial review for an order of certiorari quashing a decision refusing permission to remain pursuant to s. 49 of the International Protection Act 2015. The proceedings raised a challenge to the manner in which s. 49 is operated on a general basis by the respondent, the Minister for Justice. The issue which the applicant raised regarding the operation of the system was that the decision pursuant to s. 49 was unlawfully made on behalf of the respondent by persons who also were appointed as International Protection Officers (IPOs). The applicant accepted, having regard to the Carltona principle (Carltona Ltd v Commissioners of Public Works [1943] 2 All E.R. 560), that the s. 49 decision can be made by an officer on behalf of the respondent and does not have to be taken by the respondent herself. However, it was asserted that it was inappropriate that the decision be taken by an IPO as this fails to respect the separate and distinct roles of an IPO determining an international protection claim and the respondent, exercising the executive function of the State, permitting a person to remain in the State on humanitarian grounds. It was also asserted that the manner in which the 2015 Act is operated by the respondent has incorrectly blurred the distinction between international protection and permission to remain decisions. Finally, it was asserted that there was an error on the face of the s. 49 decision.

Held by Burns J that the Carltona principle had not been displaced in this instance and that IPOs, acting in their separate role as officers of the respondent, to that of an IPO in respect of which they have independence, can make decisions on behalf of the respondent pursuant to s. 49 of the 2015 Act. Burns J held that the International Protection Office operates on a divisional basis with separate divisions making international protection decisions; permissions to remain decisions and review of permission to remain decisions. She found that it is clear that training is provided relating to the different functions which staff within the office perform and the roles which they have. Accordingly, she did not accept that there is a lack of clarity regarding the roles which each division perform or that there has been a blurring of the distinction provided for in the 2015 Act. She held that no error appeared on the face of the record. Accordingly, she held that the grounds of challenge to the s. 49 decision relating to the applicant had not been made out.

Burns J refused the relief sought and made an order for the respondent’s costs as against the applicant.

Relief refused.

JUDGMENT of Ms Justice Tara Burns delivered on the 16th day of April, 2021.

General

1 These proceedings raise a challenge to the manner in which s. 49 of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”) is operated on a general basis by the Respondent.

2 A significant number of other cases have raised a similar legal issue and have been placed in a holding list awaiting the outcome of this decision.

3 Section 49 of the 2015 Act places an onus on the Respondent, exercising the executive power of the State, to consider whether a failed asylum seeker should be given a permission to remain in this jurisdiction having regard to an applicant's personal circumstances and matters of State policy. In the first instance, this onus arises when a recommendation has been made by an International Protection Officer (hereinafter referred to as “an IPO”) that an asylum seeker be given neither a refugee or a subsidiary protection declaration. The onus again arises if an appeal to the International Protection Appeals Tribunal affirms the negative recommendation of the IPO and the applicant thereupon submits further information to the Respondent regarding permission to remain in the State.

4 The 2015 Act saw the introduction of a unitary process in respect of an application for international protection and permission to remain whereby an application for a declaration of refugee status results in that application together with a subsidiary protection application being considered at the same time by an IPO. In the event of such an application being unsuccessful, an onus then devolves onto the Respondent to consider whether permission to remain should be granted without the necessity for a further application to be made in this regard. This unified approach has reduced in a very significant manner, the extremely long delays which had become endemic in the previous system.

5 The 2015 Act is clear regarding the designation of responsibility with respect to the two separate decisions at issue in the 2015 Act: an IPO has responsibility for the international protection decision whereas the Respondent has responsibility for the permission to remain decision.

6 In practise, the s. 49 decision is taken on behalf of the Respondent by an officer of the Respondent who works within the International Protection Office. Such person will also have been appointed as an IPO.

7 The exercise by an officer of the Respondent, who is also appointed as an IPO, of the Respondent's s. 49 decision making power was commented upon, without negativity, by the Supreme Court in IX v. IPAT [2020] IESC 44 as follows:-

“Leave to remain is a matter of domestic law and a matter for the discretion of the Executive, exercised in this case by the Minister, and the Act therefore constitutes the IPO as, also an officer of the Minister for the purposes of such an application.”

8 In summary, the issue which the Applicant raises regarding the operation of the system, is that the decision pursuant to s. 49 is unlawfully made on behalf of the Respondent by persons who also are appointed as IPOs. The Applicant accepts, having regard to the Carltona principle, that the s. 49 decision can be made by an officer on behalf of the Respondent and does not have to be taken by the Respondent herself. However, it is asserted that it is inappropriate that the decision be taken by an IPO as this fails to respect the separate and distinct roles of an IPO determining an international protection claim and the Respondent, exercising the executive function of the State, permitting a person to remain in the State on humanitarian grounds. It is also asserted that the manner in which the 2015 Act is operated by the Respondent has incorrectly blurred the distinction between international protection and permission to remain decisions. Finally, it is asserted that there is an error on the face of the s. 49 decision.

The Applicant's Claim

9 The Applicant is a national of Nigeria. He left Nigeria in December 2016 and travelled to Germany on a visa. Having resided in Germany for a two year period, he then entered this jurisdiction in December 2018 and claimed international protection.

10 On 2 March 2020, he was notified by letter from the International Protection Office that an IPO [Ms Mairead Lenaghan] had recommended that he should not be given a refugee or a subsidiary protection declaration. The letter also contained a Notice pursuant to s. 49(5) of the 2015 Act which set out the following:-

“Permission to Remain (PTR)

Having considered your case under section 49 of the 2015 Act, the Minister has decided pursuant to section 49(4)(b) of the 2015 Act to refuse you….. permission to remain in the State.

…..

A statement of reasons for this decision prepared under section 49(5) of the 2015 Act is enclosed.”

11 The statement of reasons in relation to the s. 49 decision, which was enclosed in the letter from the International Protection Office, was signed by “Sarah Nugent, Case Worker, International Protection Office” and concluded with a paragraph headed “Decision” which stated, inter alia:-

“Therefore having considered the applicant's family and the particular circumstances of this case and the applicant's right to respect for his private and family life, I decide that the Applicant ASA should not be given permission to remain in the State under section 49 of the 2015 Act.” (emphasis added)

12 Leave to apply by way of Judicial Review for an Order of Certiorari quashing the decision refusing permission to remain pursuant to s. 49 of the 2015 Act was granted by the High Court on 8 July 2020.

Relevant sections of the 2015 Act

13 The long title to the 2015 Act includes the following in its description of the Act:-

“An Act to restate and modify certain aspects of the law relating to the entry into and presence in the State of persons in need of international protection, while having regard also to the power of the Executive in relation to these matters…”

14 The following sections of the 2015 Act are relevant to the argument before the Court:

Section 2 provides inter alia that:-

““International Protection Officer” means a person who is authorised under section 74 to perform the functions conferred on an International Protection Officer by or under this Act”;

Section 35 provides inter alia:-

“(12) Following the conclusion of a personal interview, the interviewer shall prepare a report in writing of the interview.

(13) The report prepared under subsection (12) shall comprise two parts—

• (a) one of which shall include anything that is, in the opinion of the International Protection...