Izevabekhai & Others Suing through their mother and next friend Izevbekhai (applicants/ appellants) v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Fennelly
• Judgment Date: 09 July 2010
• Neutral Citation: [2010] IESC 44
• Court: Supreme Court
• Date: 09 July 2010

[2010] IESC 44

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 393/2008 and 64/2009]

High Court Record No. 2008 300 JR

Izevbekhai (A Minor) v Min for Justice

JUDICIAL REVIEW

Between/

Enitan Pamela Izevbekhai, Naomi Alero Izevbekhai (a minor) and Jamima Temisanre Izevbekhai (a minor) (both suing by their mother and next friend Enitan Pamela Izevbekhai

Applicants/Appellants

and

The Minister for Justice, Equality and Law Reform

Respondent

IMMIGRATION

Deportation

Subsidiary protection - Ministerial discretion - Deportation orders prior to 20th October 2006 - New circumstances or facts shown to exist - Whether such discretion contained within Council Directive transposed by regulations into national law - Whether appellant has right to have subsidiary protection application heard - Interpretation of regulations - NH v Minister for Justice, Equality and Law Reform [2007] IEHC 277, [2008] 4 IR 452 overruled - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 3 and 4 - Council Directive 2004/83/EC - Applicant's appeal dismissed (2009/64 & 2008/393 - SC - 9/7/2010) [2010] IESC 44

Izevbekhai v Minister for Justice, Equality and Law Reform

Facts: The applicants were nationals of Nigeria and had exhausted all possibilities of the asylum and refugee system and asked the respondent Minister and the courts by way of judicial review to afford them "subsidiary protection". The applicants failed before the High Court and the issue arose on appeal where the European Communities (Eligibility for Protection) Regulations (SI No. 518 of 2006), made on 9 October 2006, conferred on the Minister a discretion to grant subsidiary protection or power to reconsider deportation order made prior to 10 October 2006 where new circumstances were shown. The issue arose as to the manner in which the Regulations gave effect to Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees and the obligations on the Minister made pursuant to Regulation 4(2) to consider cases other than those governed by the express terms of the Regulations.

Held by Fennelly J for the Supreme Court (Murray CJ, Denham, Hardiman, Macken JJ concurring), that the Court was satisfied that under the regulations the Minister did retain a discretion to consider an application, however, he was not obliged to consider such an application. The Minister had a discretion under Regulation 4(2) to consider the application of the appellants. The appellants do not have a right to have their application considered. The Minister was not obliged to consider the application. However the Minister had a discretion to consider the application by the appellants and the preliminary issue would be answered accordingly.

Reporter: E.F.

1 Judgment delivered on the 9th day of July, 2010 by Denham J.

2 1. A preliminary issue has arisen for determination in this case. The query is whether Council Directive 2004/83/EC of the 29 ^th April, 2004, referred to in this judgment as "the Directive", and/or the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006), referred to in this judgment as "the Regulations", which implement the Directive in Irish law, impose an obligation on the Minister to consider the application of the appellants, or whether the Directive and/or the Regulations apply to the appellants in any manner.

3 2. Enitan Pamela Izevbekhai, Naomi Alero Izevbekhai and Jamima Temisanre Izevbekhai, the applicants/appellants, are referred to in this judgment as "the appellants". The Minister for Justice, Equality and Law Reform, the respondent, is referred to as "the Minister".

Council Directive

4 3. On the 29 ^th April, 2004, the Council of the European Union adopted the Directive. It is described in its title as being on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (O.J. L304 30.9.2004). It relates to the granting of subsidiary protection status.

5 4. Article 18 of the Directive states:-

"Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V."

6 5. Chapter II deals with the assessment of applications for international protection and Chapter V covers the qualification for subsidiary protection.

7 6. The recitals refer, inter alia, to a common policy on asylum, including a Common European Asylum System, as being a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community. Recital 6 states that:-

"The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States."

8 Thus the Directive introduces minimum standards. However, the Member States have power to introduce or maintain more favourable standards.

9 7. Article 2 of the Directive provides definitions. Paragraph (e) states:-

"'person eligible for subsidiary protection' means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country."

10 8. Article 15 defines "serious harm" as consisting of:-

11 a "(a) death penalty or execution; or

12 (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

13 (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

The Regulations

14 9. The Regulations came into operation on the 10 ^th October, 2006. In the Regulations it is provided as follows:-

15 2 " 3. (1) Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as "protection decisions") made on or after the coming into operation of these Regulations:

16 (a) a recommendation under section 13(1) of the 1996 Act;

17 (b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

18 (c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates;

19 (d) a determination by the Minister under Regulation 4( 4) or 4(5).

20 (2) Nothing in these Regulations shall be taken to extend or reduce the functions of the Refugee Applications Commissioner or the Refugee Appeals Tribunal (within the meaning of the 1996 Act) in determining whether a person is a refugee.

21 [Emphasis added]

Application for subsidiary protection

22 4.(1) (a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under section 3(3)( b) of that Act, make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.

23 (b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.

24 (2) The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).

25 (3) In determining whether a person is eligible for subsidiary protection, the Minister-

26 a (a) shall take into consideration, in addition to matters mentioned in Regulation 5, any particulars furnished by the applicant under paragraph (1)( b); and

27 b (b) may take into consideration-

28 (i) the information or documentation taken into consideration in relation to the determination of the applicant's application for a declaration, and

29 (ii) such other information relevant to the application as is within the Minister's knowledge.

30 (4) Where the Minister determines that an applicant is a person eligible for subsidiary protection, the Minister shall grant him or her permission to remain in the State.

31 (5) Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in section 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.

32 (6) Nothing in these regulations shall affect the discretionary power of the Minister under section 3 of the 1999 Act."

33 [Emphasis added]

Act of 1999

34 10. Section 3(1) of the Immigration Act, 1999, referred to in this judgment as "the...