B. A. and Another v Minister for Justice and Equality and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] IEHC 618
• Court: High Court
• Docket Number: [2014 No. 31 JR]
• Date: 12 December 2014

[2014] IEHC 618

THE HIGH COURT

[No. 31 J.R./2014]

A (B) & A (R) v Min for Justice & Refugee Applications Cmsr

JUDICIAL REVIEW

BETWEEN

B. A. AND R. A.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGULATIONS 2013 SI 426/2013

EEC DIR 2004/83 RECITAL 6

EEC DIR 2004/83 RECITAL 16

EEC DIR 2004/83 RECITAL 24

EEC DIR 2004/83 RECITAL 25

EEC DIR 2004/83 ART 2

EEC DIR 2004/83 ART 2(E)

EEC DIR 2004/83 ART 2(G)

EEC DIR 2004/83 ART 4

EEC DIR 2004/83 ART 6

EEC DIR 2004/83 ART 7

EEC DIR 2004/83 CHAP V

EEC DIR 2004/83 ART 15

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 2

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 2(2)

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 3

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 15

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S1(1)

CRIMINAL JUSTICE ACT 2006 S186

EUROPEAN COMMUNITIES ACT 1972 S3

CONSTITUTION ART 29.4.10

CONSTITUTION ART 15.2.1

EUROPEAN COMMUNITIES ACT 1972 S1

EUROPEAN COMMUNITIES ACT 1972 S3(2)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

LAURENTIU v MIN FOR JUSTICE & ORS 1999 4 IR 26

MAHER & ORS v MIN FOR AGRICULTURE & ORS 2001 2 IR 139

CONSTITUTION ART 28.2

SULAIMON (AN INFANT) v MIN FOR JUSTICE UNREP SUPREME 21.12.2012 2012/43/12885 2012 IESC 63

BODE & OLA-BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

DUNNE & ORS v GARDA SUPERINTENDENT DONOHOE & ORS 2002 2 IR 533 2002 2 ILRM 200 2002/7/1623

T (MS) & T (J) (A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

MEAGHER v MIN FOR JUSTICE & ORS 1994 1 IR 329 1994 1 ILRM 1

MAHER & ORS v MIN FOR AGRICULTURE & ORS 2001 2 IR 139

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 27

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 28

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 288

EEC DIR 2004/83 ART 1

EEC DIR 2004/83 ART 4(3)

CITYVIEW PRESS LTD & FOGARTY v CHOMHAIRLE OILIUNA & ORS 1980 IR 381

H (N) & D (T) v MIN FOR JUSTICE 2008 4 IR 452 2007/27/5589 2007 IEHC 277

CAHILL v SUTTON 1980 IR 269

FRATELLI COSTANZO SPA v COMUNE DI MILANO & ANOR 1990 3 CMLR 239 1989 ECR 1839

EEC DIR 2004/83 ART 15(B)

Practice and Procedure – Subsidiary Protection – Asylum – International Protection – Qualification Directive – Torture – Serious Harm – Inhuman and Degrading Treatment

Facts: These proceedings challenged the validity of S.I. No. 426 of 2013, The European Union (Subsidiary Protection) Regulations 2013 (the '2013 Regulations'). The applicants were a mother and daughter. The mother, a national of Ghana sought asylum in Ireland in August 2007, on grounds of religious persecution. Her Irish-born daughters application for asylum was considered as part of her mother"s claim. Her claim for asylum was refused because her credibility was rejected and because she had not sought police assistance in relation to her alleged persecution on Ghana. The applicants subsequently sought subsidiary protection in 2009 pursuant to the EC (Eligibility for Protection) Regulations 2006. With the adoption of new rules for the determination of subsidiary protection applications on 18th November 2013, the applicants" solicitors made complaint that S.I. No. 426 of 2013 was invalid. The applicants" solicitors requested that their clients" applications for subsidiary protection proceed without prejudice to their entitlement to claim that the 2013 Regulations were invalid. Because there was either no reply or a neutral reply to this request, the applicants instituted these proceedings in advance of the determination of their claim. The applicants maintained two grounds of challenge to the 2013 Regulations. Firstly, it was contended that the 2013 Regulations were ultra vires the European Communities Act 1972 (the '1972 Act') because vesting the decision making power in respect of subsidiary protection applications in the Refugee Applications Commissioner (the second named respondent) could not be achieved using a Statutory Instrument made under s. 3 of the 1972 Act. Secondly, it was claimed that the definition of "torture" provided in the 2013 Regulations was an unlawful transposition of the definition contained in the Qualification Directive.

Held by Justice Mac Eochaidh, in light of the submissions presented and available evidence, that the 2013 Regulations transferring the function from the Minister to the Commissioner were capable of being regarded as a measure which was incidental, supplementary or consequential upon an obligation arising from the Qualification Directive and thereby properly included in a Statutory Instrument designed to ensure that Ireland"s obligations under EU law were fully met. The Court rejected the argument of the applicant that the transfer of power from the Minister to the Commissioner was 'radical and momentous'. Justice Mac Eochaidh also rejected the argument that the transfer was a decision of principle and of policy not necessitated by obligations of EU membership. In respects of the applicants "torture" submissions it was accepted that the Irish regulations had unlawfully narrowed the meaning of torture. The Directive did not limit its application to state actors and the Irish regulations imposed such a limit. The 2013 Regulations prevented the applicant from claiming a fear of torture from non-state actors and her narrative made clear that she feared torture and /or inhuman and degrading treatment at the hands of her family. Though it was not certain that the defect would have negative consequences for the applicant, the court was of the view that she was entitled to engage with a lawful regime of subsidiary protection in circumstances where her claim embraced a fear of torture emanating from private actors. That she may be defeated in such a claim, it was stated should not disentitle her from pursuing the claim as contemplated by the Directive. Acknowledging that the court was not requested to dis-apply the offending provision of the Regulation and that no order of certiorari was sought, the court stated that a declaration was sought that the definition of torture embodied in the 2013 Regulations was invalid as being inconsistent with article 15(b) of the Qualification Directive. It was decided that that was an appropriate Declaration to grant.

1 JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 12th day of December 2014

2 1. These proceedings challenge the validity of S.I. No. 426 of 2013, The European Union (Subsidiary Protection) Regulations 2013 (the "2013 Regulations"). The applicants are a mother and daughter. The mother is a national of Ghana who sought asylum in Ireland in August 2007. Her daughter was bom in Ireland on 8 ^th October 2007 and this child's application for asylum was considered as part of her mother's claim.

3 2. The basis of the claim for international protection (asylum and/or subsidiary protection) is important in these proceedings. What follows is the mother's account of the persecution she fears and the circumstances of her travel to Ireland.

The Applicants' Account:

4 3. When the first named applicant was 10 or 12 years old, her parents converted from Christianity to Islam, though she remained Christian and was living with her grandmother. She had problems with her father because of her refusal to convert to Islam and he beat her and would not let her play with other children. She married a Christian in 2001, against her father's wishes. He threatened her in 2002 and beat her twice in 2003, hitting her with a chair and causing the loss of four teeth. She was also kicked and threatened with death. In 2004, her father attacked her when she was pregnant and this resulted in a miscarriage. She did not seek police protection because she claims her father was a powerful man who would be able to bribe the police. In 2005, the applicant's father arranged for her to be attacked by Muslim youths. In 2007, when she was pregnant, her father threatened her and she and her husband relocated within Ghana. However, the applicant's husband was attacked and thereafter she and her husband decided to flee Ghana. On 15 ^th June 2007, they boarded a ship which stopped after two weeks. The first named applicant's husband left the ship to collect some supplies but he did not return. The applicant eventually arrived in Ireland and claimed asylum on 15 ^th August 2007. Her claim for asylum was refused, ultimately by the Refugee Appeals Tribunal, because her credibility was rejected and because she ought to have sought police assistance in relation to her troubles in Ghana.

5 4. The applicants sought subsidiary protection in 2009 pursuant to the EC (Eligibility for Protection) Regulations 2006. With the adoption of new rules for the determination of subsidiary protection applications on 18 ^th November 2013, the applicants' solicitors made complaint that S.I. No. 426 of 2013 is invalid.

6 5. The applicants' solicitors requested that their clients' applications for subsidiary protection proceed without prejudice to their entitlement to claim that the 2013 Regulations were invalid. Because there was either no reply or a neutral reply to this request, the applicants instituted these proceedings in advance of the determination of their claim.

Relevant Legislative Provisions:

7 6. Council Directive 2004/83/EC (the 'Qualification Directive') and various Recitals in the Directive were opened to the Court. They state as follows:

8 Recital 6:

"The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international...