L (S) [Nigeria] v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 06 October 2011
• Neutral Citation: [2011] IEHC 370
• Docket Number: [No. 188 J.R./2011]
• Court: High Court
• Date: 06 October 2011

L (S) [Nigeria] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

S. L. [Nigeria]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2011] IEHC 370

[No. 188 J.R./2011]

THE HIGH COURT

Abstract:

Immigration - Asylum - Judicial review - European law - Ultra vires - Council Directive 2005/85/EC - European Communities (Eligibility for Protection) Regulations 2006 - Whether the State failed or failed to adequately transpose into National law the provisions of Council Directive 2005/85/Ec.

Facts The applicant sought, by way of judicial review, certain declaratory reliefs directed at the legality or adequacy of the State's transposition into national law of the Provisions of Council Directive 2005/85/EC of 1st December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status. The applicant also challenged the validity of Regulation No. 4 of the European Communities (Eligibility for Protection) Regulations, 2006, as ultra vires, in circumstances where it was alleged the State failed to designate a "determining authority" for the purposes of Article 4 of the Procedures Directive in respect of applications for subsidiary protection. Those Regulations implemented into Irish law the provisions of Council Directive 2004/83/EC of 29th April 2004 (the Qualifications Directive). The applicant essentially argued that the procedures in place under the 2006 Regulations for the making, consideration and determination of applications for subsidiary protection contained a 'structural flaw'. It was submitted, that while the respondent was, perhaps, a "competent authority" for dealing with matters in the area of asylum, he was not formally designated as a "determining authority" as required by Article 4.1 of the Procedures Directive. Much emphasis was laid upon the fact that Ireland was the only Member State which legislated separately for applications for declarations of refugee status, under the Refugee Act 1996, and, on the other hand, applications for subsidiary protection under the 2006 Regulations. In the former procedure there were two stages involving firstly the Office of the Refugee Applications Commissioner and secondly the Refugee Appeals Tribunal, whereas in the case of subsidiary protection the application was made to and determined by the respondent alone and the applicant submitted there was no first stage decision by any "determining authority" and no appeal against a refusal.

Held by Cooke J. in refusing the application: That the Qualifications Directive applied to both applications for refugee status and applications for subsidiary protection. The Procedures Directive on the other hand, applied only to applications for asylum, except where a Member State had availed of the option to put in place a "one-stop" procedure in which a single application was made and then considered in one process, covering both asylum and subsidiary protection. The Irish Legislation had not taken the option of introducing a "one-stop" procedure and there was no obligation in Union law for it to do so. Having regard to the explicit terms of the Procedures Directive it was clear that Member States were obliged to achieve common minimum procedural standards in the asylum process. They were free to choose to also apply the same provisions in any other form of international protection including subsidiary protection but they were not obliged to do so. Where in a member state there was a single combined procedure covering both asylum applications and subsidiary protection applications the minimum standards had to apply to that unified procedure. However, even if that were not the case, it was clear that, as a matter of Irish law, the first named respondent was the "determining authority" for the purpose of the procedures relating to applications for subsidiary protection. Thus, even if it could be said that there was some necessity for the designation of a "determining authority", whether under the Procedures Directive or under the Qualifications Directive, the obligation had clearly been discharged by the adoption and coming into force of the 2006 Regulations. Consequently, there was no deficiency in the transposition of the Qualifications Directive or of the Procedures Directive and there was no structural flaw in the 2006 Regulations.

Reporter: L.O'S.

Mr. Justice Cooke

1 By order of the Court of 14^th March, 2011 (Cooke J.), leave was granted to the applicant to apply for certain declaratory reliefs by way of judicial review directed, broadly speaking, at the legality or adequacy of the State's transposition into national law of the provisions of Council Directive 2005/85/EC of 1^st December, 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status ("the Procedures Directive"). The reliefs sought also challenge the validity of Regulation No. 4 of the European Communities (Eligibility for Protection) Regulations 2006, as ultra vires, in circumstances where the State is alleged to have failed to designate a "determining authority" for the purposes of Article 4 of the Procedures Directive in respect of applications for subsidiary protection.

2 The applicant's apparent standing to bring this application for judicial review is based upon the fact that, in response to a letter proposing to deport him dated 21^st January, 2011, received from the first named respondent, he opted to submit a "without prejudice" application for subsidiary protection as a person whose application for a declaration of refugee status under the Refugee Act 1996, had been...