F.M. v Minister for Justice

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs Justice Faherty
Judgment Date27 February 2020
Neutral Citation[2020] IECA 184
Date27 February 2020
Docket NumberAppeal Number: 2018/186 Appeal Number: 2018/190 Appeal Number: 2018/191 Appeal Number: 2018/192 Appeal Number: 2018/193 Appeal Number: 2018/194 Appeal Number: 2018/195 Appeal Number: 2018/200 Appeal Number: 2018/359
BETWEEN/
F.M.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
I.M.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
THE HUMAN RIGHTS COMMISSION
NOTICE PARTY
- AND -
BETWEEN/
P.C.N. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J.N.)
APPLICANT/APPELLANT
-AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
J.N.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
S.W. I. M. S. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.B.F.)
APPLICANT/APPELLANT
-AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
J.U.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
T.O.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
R.B.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
THE HUMAN RIGHTS COMMISSION
NOTICE PARTY
- AND -
BETWEEN/
H.Y.O.

AND

D.F.O.I. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND H.Y.O.)
APPLICANTS/APPELLANTS
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
- AND -
BETWEEN/
D.D.
APPLICANT/APPELLANT
- AND -
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2020] IECA 184

Faherty J.

Haughton J.

Power J.

Appeal Number: 2018/186

Appeal Number: 2018/189

Appeal Number: 2018/190

Appeal Number: 2018/191

Appeal Number: 2018/192

Appeal Number: 2018/193

Appeal Number: 2018/194

Appeal Number: 2018/195

Appeal Number: 2018/200

Appeal Number: 2018/359

THE COURT OF APPEAL

Subsidiary protection – Audi alteram partem – Effective remedy – Appellants seeking subsidiary protection – Whether impugned subsidiary protection decisions should be quashed for breach of the audi alteram partem rule

Facts: Ten appeals came before the Court of Appeal for consideration, arising from the High Court’s (Humphreys J’s) dismissal, in a series of judgments, of challenges brought by the appellants to the first respondent’s (the Minister for Justice and Equality) refusal to grant them subsidiary protection. It was agreed that the followings issues fell to be decided: (i) whether the impugned subsidiary protection decisions should be quashed for breach of the audi alteram partem rule; (ii) whether judicial review vindicated the appellants’ right to an effective remedy in regard to the refusals of subsidiary protection; and (iii) whether the regime in place under which the appellants applied for subsidiary protection was compatible with EU law. In their respective Notices of Appeal, the appellants requested that a reference be made to the CJEU on the basis that there is uncertainty as to whether judicial review constitutes an effective remedy for the purposes of Article 47 of the EU Charter or “the general principles of European Union law”. They also requested a reference in order for the CJEU to determine whether “confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker’s entitlement to remain lawfully in the State pursuant to s.9(2) of the Refugee Act 1996, has expired and a decision has been taken to propose the deportation of the applicant under s.3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006 Regulations in conjunction with s.3 of the said Act of 1999, have the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th April, 2004, and/or incompatible with general principles of European Union law?” (the enmeshment issue).

Held by Faherty J that, having regard to the extensive jurisprudence at both EU and national level that judicial review constitutes an effective remedy for the purposes of Article 47, she perceived no basis upon which the court should seek a reference on the issue. Similarly, as far as the enmeshment issue was concerned, she was of the view that the suggested question to be referred had effectively been addressed by the CJEU in H.N. v Minister for Justice (Case C-604/12) EU:C:2014:302, [2014] 1 W.L.R. 3371, and by the Supreme Court in Nawaz v Minister for Justice [2015] IESC 30 and (indirectly) V.J. v Minister for Justice [2019] IESC 75. She agreed with the Minister’s submission that there was no legal issue identified as not acte clair which required to be determined by the CJEU. In all the circumstances of these cases, she perceived no basis upon which to hold that the trial judge erred in failing to quash the subsidiary protection decisions on the ground that the appellants’ right to be heard was breached. Having considered the submissions advanced in the appeals against the background of the very clear jurisprudence that judicial review constitutes an effective remedy, she perceived no basis upon which the trial judge’s rejection of the appellants’ effective remedy argument could be set aside. In all the circumstances, she found that the trial judge did not err in law or in fact in refusing to grant relief on the enmeshment ground.

Faherty J held that the appeals would be dismissed.

Appeals dismissed.

JUDGMENT of Ms Justice Faherty dated the 27th day of February 2020
1

Ten appeals come before this Court for consideration, arising from the High Court's (Humphreys J's) dismissal, in a series of judgments, of challenges brought by the appellants to the first respondent's (hereinafter “the Minister”) refusal to grant them subsidiary protection.

2

The relevant law at issue is that contained in Directive 2004/83/EC of 29 April 2004, O.J. L304/12, 30.9.2004 (“the Qualifications Directive”), which provides for the establishment of minimum standards for qualification for refugee status or subsidiary protection. The Qualifications Directive was transposed into Irish law by the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518/2006) (“the 2006 Regulations”). The 2006 Regulations were in force until 2013 and operated in the context of a system whereby applicants seeking refugee status were dealt with firstly under the statutory scheme (the Refugee Act 1996, as amended) which established the Office of the Refugee Applications Commissioner (“ORAC”) with a right of appeal to the Refugee Appeals Tribunal (“RAT”) and, thereafter, a decision of the Minister to grant or refuse a declaration of refugee status.

3

Under the 2006 Regulations, the ability to apply for subsidiary protection was confined to those persons whose applications for asylum had been refused, and accordingly it was only at the point of such refusal that an application for subsidiary protection could be made. The system in place was commonly referred to as the “bifurcated” system. The 2006 Regulations were replaced by the European Union (Subsidiary Protection) Regulations 2013 (S.I. No.426/2013) (“the 2013 Regulations”), which introduced new procedures. The 2013 Regulations, in turn, have been replaced by the International Protection Act 2015 which established a common procedure for the examination of asylum and subsidiary protection applications. It is, however, to the bifurcated system as described above that these appeals relate.

4

Each of the appellants in the within appeals was the recipient of a negative decision of the Minister in respect of refugee status following adverse appeal decisions from the RAT. In each case, the Minister's letter refusing refugee status offered the applicant the opportunity to leave the State voluntarily or to consent to a deportation order. The letter informed the applicant of his or her right to apply for subsidiary protection and/or make representations to the Minister seeking permission to remain temporarily in the State in accordance with s.3(3)(b) of the Immigration Act 1999, as amended.

5

The following is a brief outline of the appellants’ respective factual backgrounds and the timelines involved in their requests for international protection:

F.M.
6

F.M. is a national of DR Congo. He applied for asylum on 23 September 2008. By decision dated 26 April 2010, the RAT upheld ORAC's recommendation that asylum be refused. On 25 June 2010, the Minister refused him refugee status. His subsidiary protection application was made on 14 July 2010 and primarily related to a risk, if he was returned to DR Congo, of torture or inhuman and degrading treatment or punishment because of his ethnicity and political opinion (essentially the same claim as made in his asylum application) and also because of his being a failed asylum seeker. Subsidiary protection was refused by decision dated 29 April 2011. The deportation order which duly issued against F.M. has however been revoked and he has been granted a temporary permission to reside in the State.

I.M.
7

I.M. is a national of Ghana. He sought asylum in 2008. ORAC recommended refusal and this was affirmed by the RAT on 10 February 2009. The Minister's decision refusing him refugee status issued on 25 March 2009. He applied for subsidiary protection on 17 April 2009. His claim was based on a risk, if he was to be returned to Ghana, of torture or inhuman and degrading treatment or punishment and on serious and individual threat to a civilian's life or person by reason of international or internal armed conflict. He was refused subsidiary protection on 8 November 2012. I.M.'s deportation order has since been revoked and he currently has permission to remain in the State until June 2022.

P.C.N.
8

P.C.N, was born in the State on 26 August 2006, of Zimbabwean and DR Congolese parentage. An application for...

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