E. D. v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mac Eochaidh |
| Judgment Date | 16 October 2014 |
| Neutral Citation | [2014] IEHC 456 |
| Court | High Court |
| Date | 16 October 2014 |
[2014] IEHC 456
THE HIGH COURT
BETWEEN
AND
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 62
IMMIGRATION ACT 1999 S3
EEC DIR 2004/83
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 4(1)(A)
A (F) (IRAQ) v SECRETARY OF STATE FOR THE HOME DEPT 2011 4 AER 503 2011 3 CMLR 23 2011 UKSC 22
M (M) v MIN FOR JUSTICE & ORS (NO 3) 2013 1 IR 370 2013/31/9140 2013 IEHC 9
MEADOWS v MIN FOR JUSTICE 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3
T (D) v MIN FOR JUSTICE EQUALITY AND LAW REFORM UNREP SUPREME 4.10.2014 2014 IESC 29
R (ON THE APPLICATION OF INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO) v SECRETARY OF STATE FOR TRANSPORT (CASE C-308/06) 2008 2 LLOYDS 260 2008 3 CMLR 9 2008 ECR I-4057
A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381
H (N) v MIN FOR JUSTICE EQUALITY AND LAW REFORM & ANOR (CASE C-604/12)
IMMIGRATION ACT 1999 S3(3)(B)
VAN SCHIJNDEL & VAN VEEN v STICHTING PENSIOENFONDS VOOR FYSIOTHERAPEUTEN 1996 AER (EC) 259 1995 ECR I-4705 1996 1 CMLR 801
Judicial review - Certiorari - Application for subsidiary protection - Claim for asylum based on a fear of persecution - Credibility findings- Humanitarian leave to remain temporarily in the State - s. 3 of the Immigration Act 1999 - Time limits - European law - Principle of equivalence - Council Directive 2004/83/EC - E.C. (Eligibility for Protection) Regulations 2006
Facts The applicant, a Ghanaian national, was born in 1960. She arrived in Ireland and made an application for asylum on 13 th April 2010. This was based on an alleged fear of persecution from the elders in her village. She received a negative recommendation at first instance from the Refugee Applications Commissioner who found her claims lacking in credibility and without prejudice to that finding, that internal relocation was an available option. The applicant appealed to the Refugee Appeals Tribunal who upheld the recommendation. It too found the applicants claims to be lacking in credibility. The Tribunal Member in refusing the appeal went on to make a further finding that the applicant's profile matched that of an 'economic migrant' as referred to in paragraph 62 of the UNHCR Handbook. The applicant duly received a 'three options' letter from the Minister dated 9th February 2011 giving her the options to either: 1. voluntarily leave the State before a deportation order issued; 2. consent to the making of a deportation order; or 3. make an application for subsidiary protection and/or an application for humanitarian leave to remain. The applicant through the Refugee Legal Service elected to make an application for humanitarian leave to remain temporarily in the State pursuant to s. 3 of the Immigration Act 1999. Nevertheless, the Minister decided to issue a deportation order. Thereafter, the applicant sought to make an application for subsidiary protection through her new legal advisors, Trayers & Company. The applicant"s solicitors sent a letter to the Department of Justice seeking confirmation as to whether the Minister was willing to allow the applicant to make an application for subsidiary protection and an undertaking that she would not be deported pending the consideration of such application. The Irish Naturalisation and Immigration Service (INIS) replied setting out the reasons why the Minister refused to entertain the application. INIS referred to the three options letter sent to the applicant on 9 th February 2011. It explained that the "window of opportunity" to lodge an application for subsidiary protection was to be made within a period 15 working days. It stressed it was therefore not in a position to accept an application some two and half years later.
Held The EC (Eligibility for Protection) Regulations 2006 establish a 15 working day time limit within which an application may be made for subsidiary protection. It is stated that such applications are to be made within 15 working days of notifying the applicant of the refusal of their asylum application. The judge explained it is a matter within the Minister's discretion to permit a late application to proceed. The judge said that while a delay of a few working days might be excusable, significant delay in terms of months or years may result in the loss of opportunity to an applicant. The judge stated the principle of equivalence had no application as the applicant had not compared Irish and EU measures. The gravamen of the applicant's complaint was that there was a difference between the time limit for an application for asylum and the time limit for an application for subsidiary protection which results in a shorter time period for subsidiary protections applications. The judge stressed there is no such difference. He explained the applicant was treating applications for asylum and subsidiary protection as if they were entirely separate processes each with separate rules as to when the applications may be made. This was a misconception. Asylum and subsidiary protection are complimentary and linked forms of protection. The contention that the rules provide a shorter time to apply for subsidiary protection was therefore rejected.
-The judge refused the applicant the reliefs sought
1. This is an application for judicial review seeking certiorari to quash a decision of the Minister for Justice and Equality dated 5 th November 2013 to refuse to consider the applicant's application for subsidiary protection. Leave to seek judicial review in this regard was granted by McDermott J. on 18 th November 2013.
2. The applicant is a Ghanaian national who was born on 16 th January 1960 and who arrived in the State and made an application for asylum on 13 th April 2010. The applicant's claim for asylum stemmed from a claimed fear of persecution from the elders in her village who want her to serve them at their shrine. The applicant received a negative recommendation at first instance from the Refugee Applications Commissioner who found that her claims were not credible and, without prejudice to that finding, that internal relocation was an available option for her. The applicant subsequently appealed this decision to the Refugee Appeals Tribunal who upheld the recommendation of theCommissioner and again found the applicant's claims to be lacking in credibility. The Tribunal Member in refusing the appeal went on to make the further finding that the applicant's profile matched that of an 'economic migrant' as referred to in paragraph 62 of the UNHCR Handbook.
3. The applicant duly received a 'three options' letter from the Minister dated 9 th February 2011 giving her the options to either: i) voluntarily leave the State before a deportation order issued; ii) consent to the making of a deportation order; or iii) make an application for subsidiary protection and / or an application for humanitarian leave to remain. The applicant through her solicitors, the Refugee Legal Service, elected to make an application for humanitarian leave to remain temporarily in the State pursuant to s. 3 of the Immigration Act 1999 by way of representations to the Minister on 1 st March 2011.
4. Correspondence issued from the Refugee Legal Service to the Irish Naturalisation and Immigration Service ("INIS") in the Department of Justice on 18 th April 2013 seeking information on when a decision would be taken on her application. A letter acknowledging receipt of this correspondence was sent on 26 th April 2013 and the decision of the Minister to issue a deportation order was sent by letter of 23 rd September 2013. Thereafter, the applicant sought to make an application for subsidiary protection through her new legal advisors, Trayers & Company.
5. By letter of 8 th October 2013, Trayers solicitors wrote to the Minister seeking the revocation of the deportation order and the consideration of an application for subsidiary protection. The applicant's solicitor included correspondence from the Refugee Legal Service, including internal memoranda and attendancenotes in which the views of the Refugee Legal Service not to assist the applicant in preparing an application for subsidiary protection are set out. The applicant's current solicitors set out their concerns that the applicant as an illiterate grandmother with limited English did not fully understand or appreciate the decision not to submit an application for subsidiary protection or the implications for her as a result of not doing so.
6. The applicant's solicitors sent a follow-up letter to the Department of Justice on the 31 st October 2013 seeking confirmation, or otherwise, as to whether the Minister was willing to allow the applicant to make an application for subsidiary protection and an undertaking that she would not be deported pending the consideration of such application. By letter of 5 th November 2013, the INIS replied setting out the reasons for the Minister's refusal to entertain an application for subsidiary protection by the applicant. It is that decision which is impugned in these proceedings.
7. At this juncture it is worthwhile setting out the reasons for the refusal to consider an application for subsidiary protection contained in the letter of 5 th November 2013. In the first instance, the INIS note that the applicant was served with a 'three options' letter which set out the various avenues open to her on receipt of a negative recommendation on her application for refugee status. In this regard the letter states:
"This communication set out in some detail the options open to your client arising from the refusal of her asylum application with these options to be...
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