M.L. v Minister for Justice, Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 June 2017
• Neutral Citation: [2017] IEHC 570
• Date: 20 June 2017
• Court: High Court
• Docket Number: [2011 No. 852 JR.] [2011 No. 856 JR.] [2012 No. 562 JR.]

[2017] IEHC 570

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2011 No. 852 JR.]

[2011 No. 856 JR.]

[2012 No. 562 JR.]

BETWEEN

M.L. (DRC)

J.C.B. (DRC)

AND

V.J. (MOLDOVA)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

AND

THE ATTORNEY GENERAL IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – S. 3 of the Immigration Act, 1999 – Council Directive 2004/83/EC – ('Procedures Directive') – Council Directive – 2005/85/EC ('Qualification Directive') – Refusal to give subsidiary protection – Issuance of deportation order – Leave to remain in State – Fair procedures.

Facts: In the present proceedings, the Court disposed of three separate judicial review proceedings filed by the applicants for challenging the decisions of the first respondent ('Minister'). The applicants were granted leave to seek orders of certiorari to quash the deportation orders made by the Minister in each case. The applicants claimed that the procedures followed by the Minister in relation to subsidiary protection were in breach of Directive 2004/83/EC. The issue pertained to the language of the 'three options' letter issued by the Minister whereby the right to apply for subsidiary protection was clubbed with a discretionary power to seek leave to remain on humanitarian grounds. The third applicant was afforded leave on the ground of violation of right to be heard as the Minister had refused to conduct an oral hearing. The applicants also objected to the reliance placed by the Minister on the adverse credibility findings made by the Refugee Appeals Tribunal ('Tribunal') without giving an opportunity to them to rebut those findings.

Mr. Justice McDermott granted orders of certiorari, thereby quashing the decisions made by the Minister in each case for refusing subsidiary protection. The Court held that the Minister had failed in its obligation to provide a fair opportunity to the applicants to address the issues of credibility in the subsidiary protection applications. The Court observed that the Minister did not consider any other material to assert the applicants' claims except the adverse credibility findings made by the Tribunal. The Court opined that in order to ensure separate and independent adjudication of applicants' asylum claims, it was essential to give them an opportunity to present their case. The Court, however, held that it was not necessary to conduct an oral hearing in each case except in exceptional cases where some new facts were introduced for the first time. The Court observed that the Minister had breached the principles of fair procedures.

JUDGMENT of Mr. Justice McDermott delivered on the 20th day of June, 2017

The Cases of M.L. and J.C.B.

1 The first named applicant, M.L., is a national of the Democratic Republic of the Congo (DRC) who arrived in Ireland in or about September 2008. He applied for asylum and was refused by the first respondent. He sought subsidiary protection status and leave to remain in the State on 'humanitarian grounds' under s.3 of the Immigration Act, 1999, as amended, which was refused on 11th August, 2011.

2 M.L. applied for subsidiary protection on 17th January 2011. He made further representations and supplied additional country of origin information through his solicitors on the Democratic Republic of the Congo on 1st May 2011. On 31st May 2011, Ms. Elaine Doyle, Executive Officer completed a consideration of his file and recommended that he was not eligible for subsidiary protection. On 20th July Ms. Maire Ní Fheinneadha, Higher Executive Officer accepted the recommendation and determined that he was not eligible. M.L. was notified of this decision by letter dated 25th July 2011. Thereafter on 10th August 2011 his application for leave to remain was considered by the same Ms. Doyle, who following an examination of his file under s. 3 of the 1999 Act, recommended his deportation. This file was also reviewed by Ms. Ní Fheinneadha and then by Mr. Michael Flynn, Assistant Principal on the 10th August. The recommendation was affirmed and the deportation order was made by Mr. Noel Waters on behalf of the Minister on 11th August 2011. M.L. was notified of this by letter dated 19th August. There was a period of approximately two months between the initial consideration of the subsidiary protection application by Ms. Doyle and her examination of file under s.3. There was approximately one week between the refusal of subsidiary protection and the making of the deportation order and between the dates of notification of each to M.L.

3 An application for leave to apply for judicial review was made by the applicant on 13th September, 2011. Relief was sought on fourteen grounds set out in the original statement of grounds.

4 J.C.B., the second named applicant, also a DRC national, claims to have arrived in the State on 6th February, 2009 aged twenty and claimed asylum which was refused on 5th October 2010. He then applied for leave to remain in the State on 'humanitarian grounds' under s. 3 of the 1999 Act and also made an application for subsidiary protection on 13th October, 2010. On the 28th June, 2011 the application for subsidiary protection was refused of which he was notified by letter in July. On the 18th August, 2011 he received a letter from the first respondent enclosing a deportation order and an examination of file under s. 3 dated 27th June. It was determined on 5th July that there were no humanitarian grounds for leave to remain and that a deportation order should be made. This was signed on the 5th August. The applicant was informed of his obligation to leave the State by the 3rd September, 2011 and required to present himself to the Garda National Immigration Bureau (GNIB) to make arrangements for his removal from the State.

5 J.C.B. applied for subsidiary protection following notification of the refusal of his application for refugee status and receipt of the three options letter. He applied for leave to remain in the State on the same day. The factual basis of his claim for subsidiary protection was the same as that which grounded his application for asylum. In addition, submissions were made in respect of country of origin information. On 27th June 2011 a consideration was carried out by Ms. Mary T. Groves, Executive Officer who recommended that he be deemed ineligible for subsidiary protection. This was also considered by Ms. Maire Ní Fheinneadha, Higher Executive Officer who affirmed the recommendation. Mr. Michael Flynn, Assistant Principal on 28th June 2011 reviewed the case and the recommendation and determined that J.C.B. was ineligible for subsidiary protection and he was so notified on 25th July 2011. On the 27th June 2011 the same Ms. Groves examined his leave to remain application under s. 3 and an examination of file was prepared in which she recommended his deportation. It was also reviewed by Ms. Ní Fheinneadha. Mr. Flynn considered the papers on 5th July and agreed with the recommendation. A deportation order was signed by Mr. Noel Waters on the 5th August 2011 of which he was notified by letter dated 17th August. It is clear that the consideration of his leave to remain application followed immediately upon Ms. Groves' recommendation that he was ineligible for subsidiary protection. There was approximately one month between the notification of each decision to J.C.B.

6 Both applicants initially challenged the deportation orders and subsidiary protection decisions. In a reserved judgment delivered on 12th October, 2012 Clark J. granted leave to apply for judicial review in respect of the challenges to the decisions made concerning subsidiary protection. The learned judge considered the very large number of grounds advanced by both applicants which are summarised at para. 11 of the judgment under five headings as follows:

'(i) Judicial review does not provide an effective remedy for a violation of a fundamental right guaranteed by EU law in breach of Article 47 of the EU Charter of Fundamental Rights and Freedoms;

(ii) The procedures followed in relation to subsidiary protection were in breach of Directive 2004/83/EC in that the Minister did not cooperate with the applicants in the consideration of their applications;

(iii) The Minister engaged in selective treatment of country of origin information;

(iv) The decisions to make deportation orders against them were disproportionate because of the lifelong consequences of such an order; and

(v) The procedures adopted in relation to subsidiary protection were unfair.'

The court rejected the grounds based on para. (i) above on the basis of well established case-law.

7 A claim was advanced that the protection regulations failed to properly transpose and implement Article 4(1) of the Qualification Directive rendering the subsidiary protection decision ultra vires and in breach of European Union law. The learned judge noted that Hogan J. had referred this point of law to the Court of Justice of the European Union in Case C-277/11 M.M. v. Minister for Justice and Equality (22nd November 2012) in respect of which, at that time, a decision was awaited. It was noted that on 26th April, 2012 Advocate General Bot had advised that there was no difficulty with the particular procedures referred. The court therefore adjourned its decision on that aspect of the challenge pending advice from the Court of Justice. This matter was revisited by this Court during the substantive hearing in the course of which leave to amend the statement of grounds to incorporate additional grounds based on the decision of the CJEU in M.M. was permitted. However, the ultimate determination of this aspect of the case was further delayed because it depended on the conclusion of litigation involving the interpretation of the judgment of the Court of Justice and the conclusion of the further reference to that Court by the Supreme Court. The first stage of...