F.D. (Nigeria) v The Internation Protection Office
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] IEHC 498 |
| Court | High Court |
| Docket Number | [2018 No. 425 J.R.] |
| Date | 31 July 2018 |
[2018] IEHC 498
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2018 No. 425 J.R.]
AND
Immigration and asylum – Order of certiorari – Evidential shortcomings – Applicant seeking an order of certiorari – Whether there were evidential shortcomings in the applicant's case
Facts: The applicant arrived in the State in June, 2009 and claimed asylum, which was rejected. On 27th October, 2009, an appeal to the Refugee Appeals Tribunal was refused. In November, 2009, refugee status was formally refused by the second respondent, the Minister for Justice and Equality, and a three-option letter was sent indicating that an application for subsidiary protection should be made within fifteen days, which was not done. The applicant claimed that he asked his former solicitor, Mr Sweeney, to seek leave to remain and subsidiary protection. In November, 2009, that solicitor sought leave to remain only. In September, 2010, a deportation order was made. The applicant then evaded for a lengthy period. In April, 2016, new solicitors Burns Kelly Corrigan sought revocation of the deportation order. Mr O'Shea B.L. for the applicant said that the applicant did not know at that point that the subsidiary protection application had not been made. Mr O'Shea was forced into the position of accepting that the applicant through Burns Kelly Corrigan did not take up the option which opened up following Case C-429/15 Danqua v Minister for Justice and Equality of making a further application during a limited time-window. In March, 2018, the applicant's third set of solicitors, Trayers and Company, obtained a file from the applicant's first solicitors and established that no subsidiary protection application had been made. They then sought permission to make a late application, which was refused on 13th April, 2018. On 9th July, 2018, leave to apply to the High Court was granted, the primary relief being an order of certiorari directed to the decision of 13th April, 2018. There was a fall- back claim that the European Union (Subsidiary Protection) Regulations 2017 (S.I. No. 409 of 2017) are contrary to EU law.
Held by Humphreys J that: 1) there were evidential shortcomings in the applicant's case; 2) the applicant's failure to avail of the 2017 regulations and his disengagement from the process were fatal; 3) the applicant's complaint that the application met the requirement of "special circumstances" warranting extension of time had not been made out; 4) the applicant's challenge to the validity of the 2017 regulations did not arise given the evidential shortcomings in the case overall; and 5) insofar as the injunction sought indirectly to challenge a deportation order out of time, it failed to comply with s. 5 of the Illegal Immigrants (Trafficking) Act 2000.
Humphreys J held that the application would be dismissed.
Application dismissed.
The applicant arrived in the State in June, 2009 and claimed asylum. That was rejected. On 27th October, 2009, an appeal to the Refugee Appeals Tribunal was refused. The tribunal member Mr. Fergus O'Connor B.L. held ' I do not believe the applicant ever had any difficulties in his country of origin'. In November, 2009, refugee status was formally refused by the Minister and a three-option letter was sent. That letter indicated that an application for subsidiary protection should be made within fifteen days. That was not done.
The applicant claims in the grounding affidavit that he asked his former solicitor, Mr. James Sweeney, to seek leave to remain and subsidiary protection. In November, 2009, that solicitor sought leave to remain only. In September, 2010, a deportation order was made. The analysis refers to the applicant's connection with the State as being an asylum claim. There is no reference to a subsidiary protection claim. The covering letter refers to the reason for the Minister's proposal being the refusal of a declaration of refugee status. There is no reference to refusal of subsidiary protection. The applicant then evaded for a lengthy period. In April, 2016, new solicitors Burns Kelly Corrigan sought revocation of the deportation order. Mr. Paul O'Shea B.L. for the applicant says that the applicant did not know at that point that the subsidiary protection application had not been made; but that proposition defies logic. It would have been one of the first things that any experienced solicitor would have done, to examine what previous protection applications had been made. Indeed in exchanges with the court Mr. O'Shea had to accept that the first port of call is to see what previous decisions were made and in the deportation context that would involve seeing what the analysis of file would say. It is hard to imagine that Burns Kelly Corrigan would not have looked for the analysis if they had not got it, or that they would not have read it and the covering letter and seen that there had been no reference to subsidiary protection.
Much of Mr. O'Shea's submission as to what the applicant did or did not know is mere gloss by counsel and is not expressly backed up by averments by or on behalf of the applicant. Mr. O'Shea is forced into the position of accepting that the applicant through Burns Kelly Corrigan did not take up the option which opened up following the Danqua decision of making a further application during a limited time-window, and says he does not know why that option was not taken up.
The applicant has not put in anything on affidavit as to why the applicant through Burns Kelly Corrigan failed to avail of this crucial opportunity. That arose because on 20th October, 2016 in Case C-429/15 Danqua v. Minister for Justice and Equality, the CJEU held that the fifteen-day time limit already referred to was not in accordance with EU law. The European Union (Subsidiary Protection) Regulations 2017 ( S.I. No. 409 of 2017) were then introduced, which allowed 30 working days from 2nd October, 2017 for persons...
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