M.S. (Afghanistan) v The Minister for Justice and Equality; M.W. (Afghanistan) v The Minister for Justice and Equality; G.S. (Georgia) v The Minister for Justice and Equality;

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] IEHC 477
• Date: 02 July 2019
• Court: High Court
• Docket Number: [2018 No. 490 J.R.] [2018 No. 796 J.R.] [2018 No. 962 J.R.]

[2019] IEHC 477

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 490 J.R.]

[2018 No. 796 J.R.]

[2018 No. 962 J.R.]

BETWEEN

M.S. (AFGHANISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

M.W. (AFGHANISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

G.S. (GEORGIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Immigration and asylum – Subsidiary protection – Judicial review – Applicants seeking judicial review – Whether questions of European law were relevant

Facts: The first applicant was an asylum seeker from Afghanistan. On 1st August, 2017 he applied for international protection. Fraudulently, he failed to tell the International Protection Office (IPO) that he had already been granted subsidiary protection by Italy. Following his application, a Eurodac hit showed matches with fingerprints previously taken in France in April and June, 2017 and in Italy on 6th August, 2012. Contact was made with the Italian authorities who on 10th October, 2017 informed the IPO that the applicant had been granted subsidiary protection in Italy and had a residence permit up to 11th December, 2020. On 1st December, 2017 the IPO decided that the application for protection was inadmissible under s. 21(4)(a) of the International Protection Act 2015. He appealed that recommendation to the International Protection Appeals Tribunal (IPAT) on 17th January, 2018. On 23rd May, 2018 the tribunal decided to uphold the decision to deem the protection application to be inadmissible. He sought an order of certiorari directed to the decision of the tribunal of 23rd May, 2018. The second applicant also hailed from Afghanistan. He made a claim for international protection on 4th July, 2017. He did not disclose his immigration history when doing so. On 14th August, 2017 the Italian authorities informed the IPO that he had been granted subsidiary protection in Italy and had a residence permit up to 23rd January, 2022. On 2nd February, 2018 the IPO decided to deem the application for international protection to be inadmissible. He appealed that to the IPAT on 8th February, 2018. On 28th September, 2018 the tribunal rejected the appeal. He sought certiorari of the tribunal decision of 28th September, 2018. The third applicant, a national of Georgia, travelled to Ireland, arriving on 17th December, 2017 and was refused leave to land. He then indicated that he wished to apply for international protection and did so the following day. He was forthcoming about his immigration history. A Eurodac hit confirmed matches with fingerprints taken in Italy on 12th March, 2009. A take-back request under the Dublin system was issued on 17th January, 2018 to Italy but that was refused on 31st January, 2018 on the grounds that the asylum procedure had been completed in Italy. On 29th June, 2018, the IPO decided to deem his application for international protection to be inadmissible. That was appealed to the tribunal, which decided on 18th October, 2018 to affirm that recommendation. He sought an order of certiorari directed to the decision of the tribunal of 19th October, 2018 and a declaration that s. 21(2)(a) of the 2015 Act is contrary to EU law and is invalid. Three questions of European law fell for a decision in this case: (i) does the reference to “the Member State concerned” in art. 25(2)(d) and (e) of Directive 2005/85 mean (a) a first member state which has granted protection equivalent to asylum to an applicant for international protection or (b) a second member state to which a subsequent application for international protection is made or (c) either of those member states; (ii) where a third country national has been granted international protection in the form of subsidiary protection in a first member state, and moves to the territory of a second member state, does the making of a further application for international protection in the second member state constitute an abuse of rights such that the second member state is permitted to adopt a measure providing that such a subsequent application is inadmissible; (iii) is art. 25 of Directive 2005/85 to be interpreted so as to preclude a member state which is not bound by Directive 2011/95 but is bound by Regulation 604/2013, from adopting legislation such as that at issue in this case which deems inadmissible an application for asylum by a third country national who has previously been granted subsidiary protection by another member state.

Held by the High Court (Humphreys J) that the relevance of the first question was that if “the member state concerned” includes the first member state i.e. if it means the first member state or it means either of the member states, then there could have been a lawful basis on which these applications were held to be inadmissible and therefore s. 21 of the 2015 Act may not be incompatible with EU law. Humphreys J held that the relevance of the second question was that if the application may be rejected as an abuse of rights then the applicants’ challenge fails. Humphreys J held that the relevance of the third question was that if such legislation is permitted then the applicants’ challenge fails.

Humphreys J held that the appropriate order was that the questions be referred to the CJEU pursuant to art. 267 of the TFEU.

Questions referred to the CJEU.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 2nd day of July, 2019

Facts in M.S.

1 Mr. M.S. is an asylum seeker from Afghanistan who claims to have come to the State via Greece, Italy and France. On 1st August, 2017 he applied for international protection. Fraudulently, he failed to tell the IPO that he had already been granted subsidiary protection by Italy. Following his application, a Eurodac hit showed matches with fingerprints previously taken in France in April and June, 2017 and in Italy on 6th August, 2012. Contact was made with the Italian authorities who on 10th October, 2017 informed the International Protection Office that the applicant had been granted subsidiary protection in Italy and had a residence permit up to 11th December, 2020. On 1st December, 2017 the IPO decided that the application for protection was inadmissible under s. 21(4)(a) of the International Protection Act 2015. The applicant appealed that recommendation to the International Protection Appeals Tribunal on 17th January, 2018. On 23rd May, 2018 the tribunal decided to uphold the decision to deem the protection application to be inadmissible.

Facts in M.W.

2 Mr. M.W. also hails from Afghanistan and has a particularly chequered immigration history. He claims to have left Afghanistan in 2009 and to have travelled through Iran, Turkey, Greece, Italy and France to the UK. He was given permission to remain for a year in the UK, which he unsuccessfully sought to renew. He then remained illegally until 22nd February, 2014 when he travelled to France and then Belgium. He applied for international protection in Belgium on 24th February, 2014 and then was returned to the UK on 1st May, 2014 presumably pursuant to the Dublin system. He was deported from the UK to Afghanistan on 22nd July, 2014 but left his home country again in December, 2014 when he travelled through Pakistan, Iran, Turkey, Greece, North Macedonia, Serbia, Croatia and Austria, ultimately spending periods in Germany, France and Italy. He then returned to France for a year, then came back unlawfully to the UK in early 2017 and finally to Ireland, where he made a claim for international protection on 4th July, 2017. Again, he does not seem to have disclosed his immigration history when doing so.

3 On 14th August, 2017 the Italian authorities informed the IPO that the applicant had been granted subsidiary protection in Italy and had a residence permit up to 23rd January, 2022. On 2nd February, 2018 the IPO decided to deem the application for international protection to be inadmissible. The applicant appealed that to the IPAT on 8th February, 2018, in a notice of appeal which did not contain any grounds. A subsequent ground of appeal was furnished on 22nd February, 2018. On 28th September, 2018 the tribunal rejected the appeal.

Facts in G.S.

4 Mr. G.S. is a national of Georgia who claimed to have left Georgia originally in 1993. He went to Germany and claimed asylum there but returned to his home country after ten days. He then left Georgia again in 1995 and went to Portugal on a work visa staying for four years before returning home. He left his own country again in 2003 and went to Austria where he claimed asylum, but was required to leave after four years'...