K.A. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 02 February 2015
• Neutral Citation: [2015] IEHC 67
• Court: High Court
• Date: 02 February 2015

[2015] IEHC 67

THE HIGH COURT

[No. 152/153 J.R./2013]

A (K) v Min for Justice

JUDICIAL REVIEW

BETWEEN

K.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S17(4)

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

IMMIGRATION ACT 1999 S3(2)(I)

IMMIGRATION ACT 1999 S3(2)(F)

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 4

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

IZEVBEKHAI & ORS v MIN FOR JUSTICE SUPREME 9.7.2010 2011 1 ILRM 398 2010/23/5784 2010 IESC 44

N (H) v MIN FOR JUSTICE & ORS UNREP SUPREME 29.11.2012 2013 1 IR 142 2012/33/9724 2012 IESC 58

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EEC DIR 2004/83

IMMIGRATION ACT 1999 S3(3)

EEC DIR 2004/83 ART 2

REFUGEE ACT 1996 S8

EEC DIR 2004/83 ART 2(E)

EEC DIR 2004/83 ART 2(D)

IMMIGRATION ACT 1999 S3(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 4(1)

REFUGEE ACT 1996 S17(1)(B)

IMMIGRATION ACT 1999 S3(6)(D)

GREENDALE BUILDING COMPANY, IN RE 1977 IR 256

DUBLIN CORPORATION v MCGRATH 1978 ILRM 208

FAKIH v MIN FOR JUSTICE 1993 2 IR 406

ATTORNEY GENERAL FOR HONG KONG v YEU & SHIU 1983 AC 629

FOSKETT THE LAW & PRACTICE OF COMPROMISE 7ED PARA 4-10

CREDIT SUISSE v ALLENDALE BOROUGH COUNCIL 1997 QB 306

THE STATE (MODERN HOMES IRELAND LTD) v DUBLIN CORPORATION 1953 IR 202

REFUGEE ACT 1996 S9

REFUGEE ACT 1996 S9(2)

REFUGEE ACT 1996 S9(2)(C)

KEEGAN v GARDA SIOCHANA OMBUDSMAN COMMISSION 2012 2 IR 570 2012/20/5800 2012 IESC 29

REFUGEE ACT 1996 S9(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

Y (S) & Y (R) v REFUGEE APPEALS TRIBUNAL & LAW REFORM UNREP MCMAHON 13.1.2009 2009/58/14870 2009 IEHC 18

S (AQ) & S (KI) v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP HOGAN 23.11.2010 2010 IEHC 421 2010/3/516

G (J) & M (W)(CZECH REPUBLIC) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP MCDERMOTT 2013/21/6070 2013 IEHC 248

WORLDPORT IRELAND, IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

Leave to apply for Judicial Review – Order of Mandamus – Subsidiary Protection - Immigration Act 1999

Facts: In this case by order of the 4th March 2013, the applicant, a Somali national who had been granted refugee status in Hungary, was granted leave to apply for judicial review to seek an order of certiorari quashing the decision of the respondent (the Minister) dated 22nd February, 2013, refusing to process and determine the applicant”s application for subsidiary protection and/or an order of mandamus requiring the respondent to process it in accordance with the law. It was maintained by the applicant that he was a person in respect of whom refugee status had been refused by the Minister under s 17 of the Refugee Act 1996 (as amended). Consequently, the applicant considered that he was entitled to apply for subsidiary protection. The Minister maintained that the settlement terms were agreed on his behalf in circumstances in which a declaration of refugee status had not been refused by the Minister under s 17, but rather it had been decided not to admit the applicant to the asylum process because he had been granted refugee status in Hungary and was not claiming that he had any fear of persecution for a Convention reason there. In those circumstances, the Minister contended that it was then appropriate to consider the applicant”s deportation under s 3 of the Immigration Act 1999.

Held by Justice McDermott in light of the available evidence and submissions presented that the application would be refused. The Court was satisfied on the evidence adduced and having considered the prior history of the case, including the previous judicial review proceedings and the affidavits and exhibits contained therein, that the Minister did not refuse to grant the applicant a declaration of refugee status under s 17(1)(b) of the Refugee Act 1996 (as amended). The court was also satisfied that, at all material times the applicant was informed that his application had not been processed because he had refugee status in Hungary and was not asserting a fear of persecution there, as a result of which he could not have been granted refugee status in Ireland under s 17(4) of the Act. Two consequences flowed from this. As the applicant had not been refused refugee status he could not be regarded as a person who was eligible for consideration for subsidiary protection under Regulation 4(2). Secondly, since the Minister was precluded from granting subsidiary protection to the applicant under Regulation 4, neither he or his representatives could lawfully enter an agreement to do so. Therefore, the terms of settlement, insofar as they provided that upon the striking out of the proceedings the applicant would be entitled to make an application for subsidiary protection which the Minister might consider or grant, could not have resulted in a grant of subsidiary protection to the applicant who was not entitled to be considered for same. Thus, it was reasoned that the applicant had failed to establish that he had a legal right to the performance of the term of settlement or that there was any legal duty on the Minister to consider subsidiary protection in his case. Therefore, there was no basis upon which to grant an order of mandamus, or to quash the decision refusing to process the application. Finally, in the circumstances, the Court was not satisfied that there were any substantial grounds upon which to consider a grant of leave to apply for judicial review in respect of the letter of 15th February. Having considered all of the evidence in the case, the Court determined that even if the grounds advanced were viewed as substantial, the applicant could not have established on a full hearing of the action that the decision to issue the letter was fundamentally flawed on the grounds advanced.

1 1. By order made on 4 ^th March, 2013, the applicant, a Somali national who had been granted refugee status in Hungary, was granted leave to apply for judicial review to seek an order of certiorari quashing the decision of the respondent (the Minister) dated 22 ^nd February, 2013, refusing to process and determine the applicant's application for subsidiary protection and/or an order of mandamus requiring the respondent to process it in the following circumstances. A deportation order was issued against the applicant dated 15 ^th November, 2011. Judicial review proceedings were then initiated and injunctive relief was obtained on the basis that there were substantial grounds for believing that the deportation of the applicant to Hungary would expose him to a real risk of torture, inhuman or degrading treatment [2011 No. 118 J.R.]. This was based on the applicant's personal experience of destitution as a refugee in Hungary and information obtained on the situation faced by those granted asylum in Hungary by the applicant's solicitor. An application for subsidiary protection was submitted by letter dated 9 ^th December, 2011. The applicant's judicial review proceedings were settled in March 2012, on foot of which the deportation order was revoked on 4 ^th April, and the respondent undertook to process and determine the applicant's applications for subsidiary protection and leave to remain in the State pursuant to s. 3 of the Immigration Act 1999.

2 2. By letter dated 22 ^nd February 2013, the Minister wrote to the applicant's solicitor stating that it was not intended to process the subsidiary protection application because the Minister was precluded by law from doing so.

3 3. It is clear that the compromise reached in respect of the judicial review proceedings was based on different understandings by the parties as to the reason why the deportation order had issued. The applicant maintains that at all material times, and based on correspondence with solicitors for the Minister, he was a person in respect of whom refugee status had been refused by the Minister under s. 17 of the Refugee Act 1996 (as amended). Consequently, the applicant considered that he was entitled to apply for subsidiary protection. The Minister now maintains that the settlement terms were agreed on his behalf in circumstances in which a declaration of refugee status had not been refused by the Minister under s. 17, but rather it had been decided not to admit the applicant to the asylum process because he had been granted refugee status in Hungary and was not claiming that he had any fear of persecution for a Convention reason there. The Minister, therefore, declined to process the subsidiary protection application because the applicant, notwithstanding the terms of settlement, was not a person who was a "failed asylum seeker" and was, not lawfully entitled to seek or obtain subsidiary protection under s. 17(4) of the Act. In those circumstances, the Minister contends that it was then appropriate to consider the applicant's deportation under s. 3 of the Immigration Act 1999.

The History of the Case

4 4. The applicant is a Somali national from the lower Jubba region of Somalia. He arrived in Ireland on 21 ^st January 2009, and applied for refugee status.

5 5. The applicant's fingerprints were transmitted to the Eurodac Central Unit in Luxembourg where they were found to match fingerprints taken in Hungary on 24 ^th July, 2006. The applicant had been recognised as a refugee by the Hungarian asylum authorities on 2 ^nd November 2006, under the name M.A.S., and was provided with a travel document for recognised refugees under the Geneva Convention on 9 ^th December 2008. The Office of Immigration and...