N (H) v Min for Justice and Others

JurisdictionIreland
JudgeMR. JUSTICE RYAN
Judgment Date15 December 2010
Neutral Citation[2010] IEHC 489
CourtHigh Court
Docket NumberRECORD NO. 1019 JR/2009
Date15 December 2010

[2010] IEHC 489

THE HIGH COURT

RECORD NO. 1019 JR/2009
N (H) v Min for Justice & Ors
JUDICIAL REVIEW

BETWEEN

H. N.
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 3(1)

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

IMMIGRATION ACT 1999 S3

EEC DIR 2004/83 RECITAL 24

EEC DIR 2004/83 RECITAL 25

EEC DIR 2004/83 RECITAL 26

ELGAFAJI v STAATSSECRETARIS VAN JUSTITIE 2009 1 WLR 2100 2009 AER (EC) 651 2009 ECR I-921 2009 2 CMLR 45

EEC DIR 2004/83 ART 2(E)

EEC DIR 2005/85 ART 4

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 25

EEC DIR 2005/85 ART 32

PROPOSAL FOR A COUNCIL DIRECTIVE ON MINIMUM STANDARDS FOR THE QUALIFICATIONS & STATUS OF THIRD COUNTRY NATIONALS & STATELESS PERSONS AS REFUGEES OR AS PERSONS WHO OTHERWISE NEED INTERNATIONAL PROTECTION OJ 2002/C 51/30 26.2.2002 ART 5(2)

IZEVBEKHAI v MIN FOR JUSTICE 2011 1 ILRM 398 2010 IESC 44

IMMIGRATION

Subsidiary protection

Judicial review - Declaratory relief - Irish regulations unlawful and ultra vires - Conflict with directive - Failure to allow for application for subsidiary application without prior application for asylum - Purpose of regulations - Eligibility for subsidiary protection - Supplementary status of subsidiary protection - Mode of implementing directive within terms and consistent with meaning - Elgafaji v Staatssecretarias Van Justitie [2009] ECR I-921 and Izevbekhai v Minister for Justice (Unrep, SC, 9/7/2010) considered - Relief refused (2009/1019JR - Ryan J - 15/12/2010) [2010] IEHC 489

N (H) v Minister for Justice, Equality and Law Reform

Facts The applicant who was a national of Pakistan and following the breakdown of his marriage to an Irish National was informed in 2006 that the first named respondent proposed to deport him. The applicant at no stage applied for asylum and accepted that he did not fear persecution for a convention reason. However, the applicant submitted that he required international protection and he applied for subsidiary protection under the European Communities (Eligibility for Protection) Regulations, 2006. On 27 July 2009 the first named respondent informed the applicant that only a person who has been refused refugee status can apply for subsidiary protection. The applicant herein sought a declaration that Regulation 3(1) and Regulation 4(2) of the 2006 Regulations were unlawful and ultra vires the European Communities Act, 1972 and EU Council Directive 2004/83/EC. The applicant also sought orders of mandamus and certiorari arising out of the respondent's decision refusing to consider his application for subsidiary protection. The applicant submitted in support of his application that the 2006 Regulations did not properly transpose the Directive into Irish law as they prevented an application for subsidiary protection being made by a person who was not a failed asylum seeker. The applicant argued that the Directive did not limit subsidiary protection to failed asylum seekers. The applicant further submitted that if he was required to first make a claim for asylum in order to apply for subsidiary protection then he would be making a false or fraudulent claim. It was submitted on behalf of the respondent that the Regulations conformed to the Directive and the applicant was not entitled to apply for subsidiary protection unless, inter alia, he had first failed to qualify as a refugee. The respondent relied on Article 2(e) of the Directive in support of that argument. It was further submitted that the respondent had no discretion to accept an application from the applicant in circumstances where he was not a person whose application for asylum had been refused.

Held by Ryan J. in refusing the application: That the debate in this case was essentially a theoretical one. The applicant was free to apply for subsidiary protection and was in a position to make a case for subsidiary protection. The Regulations adopted a mode of implementing the Directive that was legitimately within its terms and consistent with its meaning. It might not have been the only way of implementation but that did not invalidate it. Whatever view was taken about the debate, the worst prejudice that could be claimed by the applicant to arise our of the alleged misapplication of the Directive by the State was that he must first apply for asylum before moving on to his real case, which he said was subsidiary protection. However, the applicant's claim that he would be making a false or fraudulent claim for refugee status was unfounded. There was nothing to stop him including with that application a letter outlining his true position.

Reporter: L.O'S.

MR. JUSTICE RYAN
1

EU Council Directive 2004/83/EEC provides for applications for subsidiary protection for persons who are not entitled to refugee status but who are nevertheless at risk of serious harm. The State implemented the Qualification Directive, as it is known, by S.I. 518 of 2006. These regulations provide that subsidiary protection may be sought by a person whose application for asylum has been refused. They do not allow for an independent application so a person has to apply for asylum before seeking subsidiary protection.

2

The applicant wants to apply for subsidiary protection without going through the asylum process. He accepts that he is not a refugee because he does not fear persecution for a Convention reason but he claims that he does qualify for subsidiary protection. If he is obliged to claim refugee status before seeking what he believes he is really entitled to, he will be making a false claim and will or may suffer prejudice. The applicant objects to this.

3

The applicant's case is that he should not have to go through this charade. He claims that the Irish regulations are in conflict with the EU directive. He obtained leave to bring judicial review proceedings by order of this Court in the following terms:

4

1. The first named respondent has failed to consider the exercise of his discretion pursuant to Regulation 4(2) of the EC (Eligibility for Protection) Regulations, 2006 ( S.I. 518 of 2006) to accept the applicant's application notwithstanding that the applicant is not a failed asylum seeker;

5

2. Regulation 3(1) and Regulation 4(2) of the EC (Eligibility for Protection) Regulations, 2006 ( S.I. 518 of 2006) are unlawful andultra vires the provisions of the European Communities Act, 1972 (No. 27 of 1972) and Council Directive 2004/38/EC insofar as and to the extent that they provide that the first named respondent is entitled to refuse to consider the application for subsidiary protection of a person who is not a failed asylum seeker;

6

3. The applicant is not entitled to work unless his application for subsidiary protection is successfully determined. The applicant will sustain loss and damage waiting for a futile application for asylum to be refused should he be obliged to make such an application.

7

4. The applicant claims a declaration that Regulation 3(1) and Regulation 4(2) of the 2006 Regulations are unlawful andultra vires the European Communities Act, 1972 and the Qualification Directive. He is seeking orders of mandamus and certiorari arising out of the decision by the Minister to refuse to consider his application for subsidiary protection.

8

5. The applicant is a national of Pakistan. He entered the State pursuant to a student visa in 2003. He married an Irish national in 2004, and was granted permission to remain in the State until 2005. Following the break-down of his marriage, this permission was not renewed. On 23 February 2006, the applicant was informed that the first respondent proposed to deport him. The...

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