L -v- Minister for Justice

JurisdictionIreland
CourtSupreme Court
JudgeO’Donnell J.
Judgment Date31 October 2019
Neutral Citation[2019] IESC 75
Date31 October 2019
Docket Number[S:AP:IE:2017:000174] [S:AP:IE:2017:000175] [S:AP:IE:2018:000089] [S:AP:IE:2017:000176] [S:AP:IE:2018:000087] [S:LE:IE:2012:000505] [S:LE:IE:2012:000506]
BETWEEN
V.J.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
BETWEEN
M.L.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
BETWEEN
J.C.M.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
BETWEEN
M.L.
APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
BETWEEN
J.C.M.
APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2019] IESC 75

O’Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

[S:AP:IE:2017:000174]

[S:AP:IE:2018:000088]

[S:AP:IE:2017:000175]

[S:AP:IE:2018:000089]

[S:AP:IE:2017:000176]

[S:AP:IE:2018:000087]

[S:LE:IE:2012:000505]

[S:LE:IE:2012:000506]

Supreme Court

Subsidiary protection – Judicial review – Asylum seeker – Applicants seeking subsidiary protection – Whether by confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker's entitlement to remain lawfully in the State pursuant to s. 9(2) of the Refugee Act 1996 has expired and a decision has been taken to propose the deportation of the applicant under s. 3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of 1999, has the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th April, 2004, and is incompatible with general principles of European Union law

Facts: On 31 July 2012, the High Court (Cooke J) ([2012] IEHC 337) granted the applicant V.J. leave to seek judicial review of the decision of the first respondent, the Minister for Justice and Equality, refusing him subsidiary protection. On 12 October 2012, the High Court (Clark J) ([2012] IEHC 485) granted the applicants M.L. and J.C.M. leave to seek judicial review of their subsidiary protection decisions. McDermott J delivered a comprehensive judgment in which he dismissed the applicants’ cases in respect of the enmeshment ground on which leave had been granted by Cooke J in V.J., and dismissed five of the six sub-categories of the fair procedures grounds upon which leave had been granted by Clarke J in the M.L. and J.C.M. cases. However, in relation to the ground concerning the entitlement to an oral hearing which had been added in the course of the proceedings, McDermott J granted an order for certiorari in all three cases. The Minister lodged appeals to the Court of Appeal in respect of the decision of McDermott J. In addition, the Minister contested the decision to permit amendment of the statement of grounds to include the additional ground, and further argued that, in any event, the applicants were not entitled to succeed on the additional ground as formulated. Thereafter, the Supreme Court delivered its decision in

M.M. v Minister for Justice and Equality [2018] IESC 10. The Minister sought permission to appeal directly to the Supreme Court by way of leapfrog appeal in order to clarify and resolve any outstanding issues. For their part, the applicants, recognising that the decision of the court in M.M. undoubtedly strengthened the Minister’s appeal, indicated that they wished to cross-appeal and advance additional grounds on which the decision of McDermott J should be sustained, namely the grounds which McDermott J had dismissed. By determinations dated 15 May 2018 ([2018] IESCDET 68, [2018] IESCDET 69, and [2018] IESCDET 70) the court granted leave to the Minister to appeal directly to the court in order to resolve all outstanding issues in respect of the subsidiary protection regime which had been applicable at least up until the introduction of S.I. No. 426/2013 - European Union (Subsidiary Protection) Regulations 2013, and ultimately the International Protection Act 2015. This was on the basis that the applicants would be entitled to argue the additional bases upon which they contended that the decision of McDermott J could be upheld. The court also directed that the Article 64 direction be cancelled so that the appeals from the refusal of leave by Clark J should also be listed, and that the cases should be case managed together.

Held by O’Donnell J that the court would consider on this appeal the following grounds: (1) whether the facts of M.L. and J.C.M. are distinguishable from M.M. such as to require an oral hearing or interview in his case; (2) the enmeshment point upon which leave was granted by Cooke J in V.J.; (3) the enmeshment point as separately formulated by Clark J in M.L. and J.C.M.; (4) the absence of an appeal mechanism point upon which leave was refused by Clark J.; and (5) the fresh evidence point in J.C.M. O’Donnell J rejected the applicants’ arguments.

O’Donnell J held that he would allow the Minister’s appeal in each case, dismiss the applicants’ cross-appeals, and set aside the orders of the High Court quashing the decisions of the Minister.

Appeals allowed.

Judgment of O’Donnell J. delivered the 31st day of October 2019.
Introduction
1

These cases have a very complex procedural history and raise a number of points about the regime for decisions on applications for subsidiary protection which applied in Ireland between 2006 and 2013, and which has given rise to much litigation and criticism both in the Irish courts and in the Court of Justice of the European Union (“CJEU”). During that period, Ireland operated what has been described accurately as bifurcated system. That meant that, notwithstanding the obvious similarities between the criteria for a grant of asylum and those for subsidiary protection, applicants for asylum were first dealt with under a statutory scheme which established the Office of the Refugee Applications Commissioner (“ORAC”), and an appeal to the Refugee Appeals Tribunal (“RAT”) resulting in a formal decision of the minister to grant or refuse asylum. Under the provisions of S.I. No. 518/2006 - European Communities (Eligibility for Protection) Regulations 2006 (“the 2006 Regulations”), subsidiary protection was designed to be granted to a person whose application for asylum had been refused, and accordingly it was only at that point that an application for subsidiary protection might be made. Such an application was made to the Minister, and in practice considered by his or her departmental officials. Like the decisions of both the ORAC and the RAT, the Minister's decision was subject to judicial review. The complexity of these procedures provided fertile ground for legal challenges, and since the relevant law implemented the law of the European Union, such challenges could and did lead to a number of references to the CJEU.

2

It is a feature of the law relating to immigration that legal challenges by way of judicial review tend to be generic. The challenge to the validity of the decision often concerns a point of law which may be of general application. Accordingly, if leave is granted for judicial review, the consequence may be that a raft of subsequent identical challenges raising the same point are raised in other cases, which often has the effect of creating significant blockages in the asylum and subsidiary protection processes and in the courts. Since, however, the individual applicants are often represented by different lawyers, the process is an organic one. Not all the points that are raised are developed in the same proceedings, or in the same way. Where the matters come before the High Court, substantial efforts are made to attempt to isolate and determine points which govern a significant number of cases, but the appeals in these cases are a cautionary tale in the difficulty in managing such disputes and bringing them to a clear conclusion.

3

In order to understand the issues which remain for resolution in these appeals, it is necessary to trace the course of three separate streams of litigation on issues relating to subsidiary protection, only two of which are, however, directly involved in these proceedings.

V.J.
4

In the first case, V.J. arrived in the State from Moldova on 18 October 2008. He sought asylum in Ireland based on a fear of persecution in Moldova for reasons of political opinion or activity. The persecution alleged involved threats of harm to himself and his family after his wife, a member of an opposition party in Moldova, attempted to publish an article implicating the son of the country's president in illegal cross-border trade in drugs and alcohol. His wife had arrived in Ireland in 2006, and they have one child together here. His other children were in Moldova.

5

V.J.'s application for refugee status under s. 17 of the Refugee Act 1996 (as amended) (“the 1996 Act”) was refused by letter dated 24 September 2009, for lack of credibility following on an adverse decision of the RAT. The letter from the Minister informing V.J. of the refusal of his application for refugee status was in standard terms, and offered the applicant the opportunity of leaving the State voluntarily or consenting to a deportation order, and informed him of his right to apply for subsidiary protection and/or make representations to the Minister seeking permission to remain temporarily in the State in accordance with s. 3(3)(b) of the Immigration Act 1999 (as amended) (“the 1999 Act”).

6

V.J. duly applied for subsidiary protection under the then applicable 2006 Regulations, and, in the alternative, for permission to remain in the State temporarily, by an application dated 15 October 2009. He was notified that the Minister had, however, determined that he was not a person eligible for subsidiary protection by letter dated 5 April 2012, on the basis that his claim was not credible, and having regard to relevant country of origin...

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