A (BJS) [Sierra Leone] v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 12 October 2011
• Neutral Citation: [2011] IEHC 381
• Docket Number: [No. 697 J.R./2011]
• Court: High Court
• Date: 12 October 2011

[2011] IEHC 381

THE HIGH COURT

[No. 697 J.R./2011]

A (BJS) [Sierra Leone] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

B. J. S. A. [Sierra Leone]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EEC DIR 2004/83

EEC DIR 2005/85 ART 4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

EEC DIR 2005/85 RECITAL 24

EEC DIR 2005/85 ART 2(E)

EEC DIR 2005/85 ART 15

EEC DIR 2005/85 ART 17(1)

EEC DIR 2005/85 ART 17(2)

L (S)[NIGERIA] v MIN FOR JUSTICE UNREP COOKE 6.10.2011 2011 IEHC 370

EEC DIR 2005/85 ART 3.3

EEC DIR 2005/85 ART 3.1

EEC DIR 2005/85 ART 39

EEC DIR 2004/83 ART 4.1

EEC DIR 2004/83 ART 4.2

REFUGEE ACT 1996 S8(1)

REFUGEE ACT 1996 S11(1)

REFUGEE ACT 1996 S11(2)

REFUGEE ACT 1996 S11(C)

REFUGEE ACT 1996 S16(6)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 SCHED 1

M (I M) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP COOKE 26.7.2011 2011 IEHC 309

EEC DIR 2005/85 ART 14.2

EEC DIR 2004/83 ART 39

TREATY OF THE EUROPEAN UNION ART 19.1

PASQUINI 2003 ECR 1-6515

REFUGEE ACT 1996 S17(1)

A (F)(IRAQ) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2011 UKSC 22

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

INJUNCTIONS

Interlocutory injunctions

Immigration - Refusal of subsidiary protection - Deportation order - Appropriate tests - Effective remedy - Obligation of co-operation - Principle of equivalence - Whether Council Directive 2005/85/EC applied to subsidiary protection - Whether Regulations of 2006 deficient in failing to give right of appeal of subsidiary protection decision - Whether respondent obliged to conform to fair procedures - Whether respondent required to furnish draft determination for comment - Whether absence of equivalence between asylum process and subsidiary protection process - Whether fair issue to be tried - Whether substantial grounds - Pasquini v Istituto Nazionale della Previdenza Sociale (Case 34/02) [2003] ECR 1-6515 and Campus Oil v Minister for Energy (No. 2) [1983] IR 88 applied - L(S) (Nigeria) v Minister for Justice and Law Reform [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011) and M(IM) v Minister for Justice, Equality and Law Reform [2011] IEHC 309, (Unrep, Cooke J, 26/7/2011) approved - FA (Iraq) v Secretary of State for the Home Department [2011] UKSC 22, [2010] 1 WLR 2574 distinguished - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), sch 1 - Refugee Act 1996 (No 17), ss 8, 11, 16 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights 1950, art 13 - Geneva Convention 1951 - Charter of Fundamental Rights 18/12/2000 (2000/C 364/01), art 47 - Council Directive 2004/83/EC, arts 2, 4, 15, 17 and recital 24 - Council Directive 2005/85/EC, arts 3, 14 and 39 - Treaty on European Union, art 19 - Treaty on the Functioning of the European Union, art 267 - Injunction refused (2011/697JR - Cooke J - 12/10/2011) [2011] IEHC 381

A(BJS) (Sierra Leone) v Minister for Justice and Equality

Facts The applicant sought by way of judicial review leave to challenge the legality of the first named respondent's decision to refuse his application for subsidiary protection and his decision to make a deportation order in respect of the applicant. The applicant also sought an injunction restraining his deportation. The applicant was a National of Sierra Leone but moved to Nigeria when he was 6 years old. He fled Nigeria in 2006 and applied for refugee status in Ireland on the basis of events in Nigeria. The initial claim and his appeal were unsuccessful. The applicant's joint application for subsidiary protection and for leave to remain in the State was also refused and a deportation order was signed on 2 March 2011. The applicant submitted herein that the determination of his application for subsidiary protection (the determination) was invalid in law because the procedure put in place for dealing with such applications under the European Communities (Eligibility for Protection) Regulations 2006 failed to comply correctly or adequately with the requirements of the directive which the regulations purported to implement, namely Council Directive 2004/83/EC of 29 April 2004, on the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the contents of the protection granted (the Qualifications Directive). More specifically the applicant submitted that the 2006 Regulations failed to transpose the requirement in Article 4.1 of the Qualifications Directive that the relevant elements of the application be assessed in "co-operation with the applicant". The applicant further submitted that there was no provision for an effective remedy in respect of a refusal of subsidiary protection and that the failure to provide a mechanism of appeal against such a refusal breached the principles of equivalence in European Law in that the procedure under the 2006 Regulations was inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum. The challenge by the applicant was not based on any factual aspects but was based exclusively on legal argument.

Held by Cooke J. in refusing the application: That subsidiary protection was an innovation of European Union law and was not derived from the Geneva Convention of 1951 on the status of refugees. Subsidiary protection was an adjunct of refugee status and was only extended to a person who was not a refugee. The Qualifications Directive introduced this form of complementary protection but was otherwise concerned only with establishing common minimum standards for the assessment of substantive qualification of the two forms of international protection (i.e. Refugee Status and Subsidiary protection). Minimum procedural standards were laid down exclusively in the Procedures Directive, which applied only to procedures employed by the Member States in processing claims for refugee status except where a Member State employed a form of unified procedure for the processing of joint applications for both forms of international protection. Ireland did not put in place such a unified procedure. It followed that the "right to an effective remedy" conferred by Article 39 of the Procedures Directive applied only to appeals against decisions listed therein, all of which were decisions taken in the course of the asylum process. The exercise involved in determining an application for subsidiary protection in this State was essentially the same as that involved in determining an application for asylum. Consequently there was no deficiency in the 2006 Regulations by reason of the absence of any express repetition of the words "in co-operation with the applicant" in relation to the distinct assessment of an application for subsidiary protection. However, the process of determining an application for subsidiary protection must conform to the normal rules of fair procedures and this requirement is not dependent upon any express reiteration of the word "co-operation" in the 2006 Regulations. In any event a claim of non-compliance with the duty of co-operation could not be made as a purely academic point divorced from specific facts. In conclusion, there was no deficiency in the manner in which the Qualifications Directive was transposed in national law by the 2006 Regulations. Insofar as the provisions of the 1996 Act could be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it was only because of the manner in which the State adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive. Accordingly, what the applicant pointed to as a superior remedy provided by National law was in fact a remedy brought about by European Law. No fair issue for consideration of the leave application was made out by the applicant and the first limb of the Campus Oil test for an injunction was not satisfied. The arguments raised as to the legality of the deportation order were also not stateable. Furthermore, the applicant was a national of Sierra Leone and he yet he never claimed to have suffered persecution in that country. It was on the basis of possible repatriation to that country that the assessment in respect of the applicant was made.

Reporter: L.O'S.

Mr. Justice Cooke

1 This judicial review proceeding came before the Court on the 3^rd October, 2011, on the first return date of the applicant's motion to seek leave to apply for a series of reliefs directed at challenging the legality of the first named respondent's decision to refuse his application for subsidiary protection (dated the 25^th February, 2011) and his decision to make a deportation order in respect of the applicant (dated the 2^nd March, 2011).

2 The Court was informed that, following the initiation of the proceedings the first named respondent had given an undertaking not to deport the applicant prior to that return date, but that he declined to extend the undertaking beyond the 3^rd October, 2011. Counsel for the applicant immediately indicated that he would then wish to move the motion for an interlocutory injunction included in the notice of motion and counsel for the respondent indicated that the respondents were prepared to meet that application. The Court accordingly heard the application together with one other similar application the...