F. M. v The Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 12 April 2021 |
| Neutral Citation | [2021] IECA 106 |
| Date | 12 April 2021 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2018/229 |
[2021] IECA 106
Donnelly J
Faherty J.
Binchy J.
Appeal Number: 2018/229
Appeal Number: 2018/245
THE COURT OF APPEAL
Judicial review – Subsidiary protection – Bias – Appellants seeking orders of certiorari quashing the decisions made by the respondent not to grant them subsidiary protection – Whether the work done by the respondent’s officials on the preparation of documents on which a deportation order decision would be taken rendered the subsidiary protection decisions unlawful by reason of bias or prejudgment
Facts: The appellants appealed to the Court of Appeal from a judgment and orders of the High Court (Humphreys J) dated 17 April 2018 dismissing the appellants’ applications for orders of certiorari quashing the decisions made by the respondent, the Minister for Justice, not to grant them subsidiary protection. The challenges brought by the appellants concerned the procedures followed by the Minister pursuant to the European Communities (Eligibility for Protection) Regulations 2006 in deciding their subsidiary protection applications. The following issue arose for determination: whether the work done by the Minister’s officials on the preparation of documents on which a deportation order decision would be taken and which was done prior to the appellants being the subject of a final subsidiary protection refusal decision, rendered their respective subsidiary protection decisions unlawful by reason of (i) breach of Regulation 4(5) of the 2006 Regulations, (ii) bias or prejudgment, or the appearance of bias or prejudgment of the subsidiary protection decision, and (iii) breach of procedural legitimate expectation.
Held by Faherty J that she was satisfied to adopt the reasoning of Cooke J in N.D. (Nigeria) v Minister for Justice [2012] IEHC 44 to find that the Minister’s consideration (in the sense referred to in Regulation 4(5) of the 2006 Regulations) of deportation matters commenced (in the case of the second appellant) when the Minister embarked, in the words of Cooke J, on her “personal deliberation” and “decision on the making of a deportation order and not the preparatory work of collating information, analysing the representations and drafting a recommendation”. In the case of the first appellant, Faherty J held that consideration on the question whether to grant him leave to remain or deport him commenced when Mr Waters (the person delegated to make the deportation decision) embarked on his personal deliberation of the leave to remain application. Faherty J held that, in both cases, the deportation consideration commenced after the subsidiary protection applications had been determined. The appellants, who bore the onus of proving the facts upon which they relied to construct a claim of bias or prejudgment, in Faherty J’s view, had not advanced any persuasive evidence or argument that the procedures adopted in the consideration of their subsidiary protection applications gave rise to objective bias. Faherty J did not find that the test for objective bias as pronounced by Denham J in Bula v Tara (No. 6) [2000] 4 I.R. 408 was made out. Faherty J found that the relevant part of the three-options letter sent to the appellants set out the order in which their “case” would be “decided”; the wording in the letter was clear, namely that the decision in relation to permission to remain or deportation would only be made after an adverse decision on the subsidiary protection application. Faherty J found that the Minister did as she said she would do: in each case, she decided the subsidiary protection first, and thereafter made a decision on the leave to remain application, i.e. she decided the relevant matters in the same sequence as set out in the respective letters. Faherty J was of the view that the three-options letters sent to the appellants could not reasonably be interpreted as an assurance that no civil servant would give consideration to the merits of the representations seeking leave to remain until after a decision had been made on the subsidiary protection application.
Faherty J held that the appeals would be dismissed. As the appellants had not succeeded in the appeals, Faherty J proposed that the Minister should be entitled to her costs.
Appeals dismissed.
Judgment of Ms. Justice Faherty dated the 12th day of April 2021
. These two appeals come before the Court from a judgment and orders of the High Court (Humphreys J.) dated 17 April 2018 dismissing the appellants' applications for orders of certiorari quashing the decisions made by the respondent (“the Minister”) not to grant them subsidiary protection. The challenges brought by F.M. and S.O.U. concern the procedures followed by the Minister pursuant to the European Communities (Eligibility for Protection) Regulations 2006 (“the 2006 Regulations”) in deciding their subsidiary protection applications.
. The 2006 Regulations transposed into law Directive 2004/83/EC of 29 April 2004 (“the Qualifications Directive”) which provides for the establishment of minimum standards for qualification for refugee status or subsidiary protection. The 2006 Regulations remained in force until 2013 and operated in the context of a system whereby applicants seeking refugee status were dealt with under the statutory scheme set up by the Refugee Act 1996, as amended (“the 1996 Act”). That scheme established the Office of the Refugee Applications Commissioner (“ORAC”) with a right of appeal to the Refugee Appeals Tribunal (“RAT”), followed thereafter by a decision of the Minister to grant or refuse a declaration of refugee status. Under the 2006 Regulations, the ability to apply for subsidiary protection was confined to those persons whose applications for asylum had been refused. Once a decision refusing asylum was made a person could then apply for subsidiary protection. 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. 426/2013) (“the 2013 Regulations”). The 2013 Regulations, in turn, have been replaced by the International Protection Act 2015 (“the 2015 Act”) which established a common procedure for the examination of asylum and subsidiary protection applications. Thus, the type of written subsidiary-protection determination procedure conducted by the Minister's officials in cases such as the present no longer takes place. Rather, applicants for international protection have their applications heard and determined following an interview at first instance and then, if unsuccessful, by way of an oral appeal to the International Protection Appeals Tribunal (“IPAT”).
. It is no understatement to say that the procedure provided for in the 2006 Regulations for the determination of subsidiary protection status has been the subject of myriad challenges in the courts in this jurisdiction and the subject of a number of references to the Court of Justice of the European Union (CJEU). Indeed, both F. M.'s and S.O.U.'s leave applications, initiated, respectively, in 2012 and 2011, were effectively paused to await the outcome of references made to the CJEU concerning the 2006 Regulations.
. To turn now to F.M.'s and S.O.U.'s respective circumstances.
. F.M. is a national of Pakistan. He arrived in the State in November 2010 and applied for asylum. Following interview by ORAC on 26 January 2011, he was subsequently notified that the report on his case pursuant to s.13(1) of the 1996 Act recommended that he not be granted a declaration of refugee status. He lodged an appeal to the RAT which was unsuccessful. By letter of 18 January 2012, he was informed of the Minister's decision to refuse him refugee status. F.M. was advised that consequent on the refusal his entitlement to stay in the State temporarily had expired. The 18 January 2012 letter (commonly referred to as the “three-options letter”) went on to advise that the Minister proposed to make a deportation order in respect of him under s.3 of the Immigration Act 1999, as amended (“the 1999 Act”). He was told that there were three options open to him: to leave the State before the Minister decided on a deportation order (Option 1); to consent to a deportation order (Option 2), or to make an application for subsidiary protection and/or submit representations to the Minister under s.3 of the 1999 Act setting out the reasons as to why a deportation order should not be made against him (Option 3). F.M. was advised that if he chose Option 3, the order in which his case would be decided was as follows:
“…The Minister will make a decision on your eligibility for subsidiary protection first. If your application for subsidiary protection is successful, you will be allowed to remain in the State for three years (this will be reviewed at the end of three years).
…If your application is not successful or you have not made an application for subsidiary protection, your representations under s.3 of the Immigration Act 1999 (as amended) will be considered.
…If the Minister decides to refuse your representations under s.3 of the Immigration Act 1999 (as amended), you will be made the subject of a Deportation Order. You will no longer have the option of leaving the State voluntarily without a deportation order.”
. By letter of 28 March 2012, F.M.'s then solicitors applied on his behalf for subsidiary protection application and sought leave to remain pursuant to s. 3 of the 1999 Act. On 1 June 2012, the Minister was informed that F.M. wished to withdraw his applications and repatriate voluntarily to Pakistan. However, on 3 July 2012, the Minister was informed that F.M. believed that...
To continue reading
Request your trial