I (E.P.), I (N.A.) & I.(T) v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 27 January 2009
• Neutral Citation: [2009] IEHC 61
• Date: 27 January 2009
• Court: High Court

[2009] IEHC 61

THE HIGH COURT

[No. 300 J.R./2008]

I (E P)(A Minor) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

E. P. I., N. A. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.), T. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, E. P. I.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

EEC DIR 2004/38

IMMIGRATION ACT 1999 S3(1)

CHILD CARE ACT 1991 S17(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 4(2)

EUROPEAN COMMUNITIES ACT 1972 S3

IMMIGRATION ACT 1999 S3(2)(F)

H (N) v MIN FOR JUSTICE UNREP FEENEY 27.7.2007 2007/27/5589 2007 IEHC 277

GAVRYLYUK & BENSAADA v MIN FOR JUSTICE UNREP BIRMINGHAM 14.10.2008 2008 IEHC 321

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 5(2)

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

O v MIN FOR JUSTICE & ORS [BABY O CASE] 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

O (AB) & ORS v MIN FOR JUSTICE & GARDA NATIONAL IMMIGRATION BUREAU UNREP 27.6. 2008 2008 IEHC 191

IMMIGRATION

Subsidiary protection

Claim of fear of persecution - Female genital mutilation - Death of daughter following mutilation - Refusal of asylum application - Deportation orders - Failure to present to immigration bureau - Refusal of judicial review - Refusal of application for subsidiary protection - Necessity for international protection - Minimum standards for qualification and status as persons needing international protection - Ministerial discretion to have regard to new or altered circumstances - Whether error in holding documentation submitted similar to documentation submitted prior to deportation order - Whether failure to properly engage with new material - Whether failure to give adequately reasoned decision - Whether discretion fettered by application of fixed test - Application of requirement of altered circumstances - Absence of automatic right to be considered eligible to apply for subsidiary protection - Serious harm - Whether material produced gave rise to altered circumstances - commissioner - Limited role of minister - H v Minister for Justice [2007] IEHC 277 (Unrep, Feeney J, 27/7/2007), Gavryluk v Minister for Justice [2008] IEHC 321 (Unrep, Birmingham J, 14/10/2008), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Baby O v Minister for Justice [2002] 2 IR 169 and ABO v Minister for Justice [2008] IEHC 191 (Unrep, Birmingham J, 27/6/2008) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 4 - Relief refused (2008/300JR - McGovern J - 27/1/2009) [2009] IEHC 61

I(EP) v Minister for Justice, Equality and Law Reform

Facts: The first named applicant was the mother of the second and third named applicants. The applicants had been refused refugee status both at first instance and on appeal. The applicants also unsuccessfully challenged a subsequent deportation order by way of judicial review. In the proceedings before this court, the applicants sought amongst other reliefs, an order of certiorari, by way of judicial review quashing the respondent's decision issued on 19/03/08, refusing to consider the applicants' application for subsidiary protection. The grounds relied on for the subsidiary protection and for the refugee applications were related to the applicants' fear for their lives as a result of threats of female genital mutilation. The impugned decision of the respondent essentially found that there were no grounds which would have enabled the respondent to exercise his discretion under Regulation 4(2) of the European Communities (Eligibility for Protection) Regulations 2006, and as a consequence the respondent had decided not to exercise his discretion to accept and consider the subsidiary protection applications. The applicants claimed that certain evidence, namely an affidavit from a Dr. Hardy, an email from BAOBAB, affidavits from persons in Nigeria corroborating the applicants' fear of FGM, country of origin information and certain correspondence and other emails ought to have been considered by the respondent in support of their applications and amounted to altered circumstances.

Held by McGovern J. in refusing the application: That the applicants did not have an automatic right to be considered eligible to apply for subsidiary protection pursuant to Regulation 4(2). The respondent was entitled to accept an application for subsidiary protection as being valid under the Regulations from the applicants as long as they could identify new facts or circumstances that arose after they were first refused leave to remain. The information relied on by the applicants was similar in content to the documents previously submitted prior to the signing of the deportation orders and did not show altered circumstances or new facts but rather amounted to corroboration of the case made and maintained by the applications since their first application for refugee status. The respondent's decision was not irrational and sufficient reasons for that decision were outlined.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Brian McGovern delivered on the 27th day of January, 2009

2 1. This is an application for judicial review wherein the applicants seek:

3 i (i) An order of certiorari quashing the respondent's decision issued on 19 ^th March, 2008, refusing to consider the applicants' application for subsidiary protection;

4 ii (ii) A declaration that the respondent's refusal to consider the applicants' application for subsidiary protection is unlawful;

5 iii (iii) An injunction prohibiting the respondent, his servants or agents from deporting the applicants pending the determination of their application for subsidiary protection, and

6 iv (iv) A declaration that the manner in which the respondent, his servants or agents is applying the European Communities (Eligibility for Protection) Regulations ( S.I. No. 518 of 2006) is in breach of Directive 2004/38/EC and the State's duties thereunder.

7 Leave to apply for judicial review was granted by order of the High Court made on 20 ^th March, 2008.

Historical facts

8 2. The first named applicant is the mother of the second and third named applicants. On 20 ^th January, 2005, the applicants entered the State and sought declarations of refugee status pursuant to the provisions of the Refugee Act 1996. The basis of the applicants' claim was that the first named applicant was in fear of her own life and the lives of the second and third named applicants as a result of threats made by the family of the husband of the first named applicant, to perform female circumcision or Female Genital Mutilation ('FGM') on the second and third named applicants. It is an accepted fact that the first named applicant's eldest daughter died in July 1994 from haemorrhage associated with FGM which was carried out after she and her husband submitted to pressure to permit her husband's relatives perform the procedure on her daughter.

9 3. On 25 ^th February, 2005, the Office of the Refugee Applications Commissioner ('ORAC') recommended that the applicants not be declared eligible for refugee status. The applicants appealed against this decision to the Refugee Appeals Tribunal ('RAT') and on 22 ^nd June, 2005, the RAT affirmed the recommendation of ORAC.

10 4. The legislation which governs the procedures to be adopted in asylum applications provides that the validity of a notification refusing refugee status shall not be questioned otherwise than by way of an application for judicial review. The same procedure applies with regard to deportation orders made under s. 3(1) of the Immigration Act 1999. ¹ No such challenge was brought against the decision of the RAT.

11 5. On 2 ^nd September, 2005, the Department of Justice, Equality and Law Reform ('The Department') refused the applicants' application for asylum.

12 6. On 13 ^th September, 2005, the Department wrote to the applicants informing them that the respondent proposed making deportation orders in respect of them and informed them that they could make written representations within fifteen days for temporary leave to remain in the State. The Refugee Legal Service sent representations to the Department on behalf of the applicants on 4 ^th October, 2005. Having examined the applicants' file, the respondent signed deportation orders in respect of the three applicants on 23 ^rd November, 2005.

13 7. The applicants were notified of the requirement to report to the Garda National Immigration Bureau ('GNIB') on 5 ^th December, 2005, by letter sent to them on 29 ^th November, 2005. The applicants failed to present to the GNIB on the appointed date. Although officers from the GNIB attended at the applicants' residence in Sligo on 8 ^th December, 2005, the first named applicant went into hiding. The second and third named applicant were taken into care on that date and were subsequently made the subject of interim care orders pursuant to s. 17(1) of the Childcare Act 1991, in Sligo District Court.

14 8. The first named applicant was apprehended by members of An Garda Siochána on 12 ^th January, 2006, and was detained in Mountjoy women's prison. On 13 ^th January, 2006, a notice of motion seeking an extension of time within which to

15 ¹ Section 5 Illegal Immigrants (Trafficking) Act 2000

16 bring judicial review proceedings against the deportation orders was filed and on 18 ^th January, 2006, a notice of motion and statement of grounds seeking leave to apply for judicial review issued in the Central Office returnable for 23 ^rd January 2006.

17 9. On that date, the High Court received an undertaking from the respondent not to deport the...