N. & Others v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton J.,Mr. Justice Herbert
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 107,[2008] IEHC 136
• Docket Number: [2007 Nos. 1432, 1528 & 1641
• Court: High Court
• Date: 08 May 2008

N (FR) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

FR. N., UYO. E. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND FR. N.) AND OB. E. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND FR. N.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IN THE MATTER OF THE REFUGEES ACT, 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED), IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, IN THE MATTER OF THE EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SECTION 3(1) BETWEEN EDE. EM., OS. EM. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND EDE. EM.) AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

N (FR) & Ors v Min for Justice & Ors

BETWEEN

SUSAN O.

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2008] IEHC 107

No. 1432 J.R/2007

No. 1528 J.R/2007

No. 1641 J.R/2007

THE HIGH COURT

IMMIGRATION

Subsidiary protection

Country of origin information - Internal relocation - Non-refoulement - Whether Minister must apply same procedure to applications for subsidiary protection as applied to applications for refugee status - Whether substantially new submissions must be considered by Minister - Whether Minister must enter into dialogue with applicants for subsidiary protection - Whether state of health of applicant gives right to subsidiary protection - Whether application for subsidiary protection can be made prior to completion of refugee process - Judicial review - Whether ordinary test for overturning administrative decisions should be applied to judicial review of refugee matters - EPI v Minister for Justice [2008] IEHC 28 (Unrep, Feeney J, 30/1/2008), Kozhukarov v Minister for Justice [2005] IEHC 424 (Unrep, Clarke J, 14/12/2005), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), and NH v Minister for Justice [2007] IEHC 277 (Unrep, Feeney J, 27/7/ 2007) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2, 3, 4, 5, 7 and 8 - Refugee Act 1996 (No 17), ss 2, 5, 8, 11(b), 13, 15, 16 and 17 - Immigration Act 1999 (No 22), ss 3, 5 and 11(1)(j) - Criminal Justice (United Nations Convention Against Torture) Act 2000 (No 11), s 4 - European Convention on Human Rights Act 2003 (No 20), s 3(1) - Immigration Act 2003 (No 26), s 7(f) - Council Directive 2004/83/EC, articles 2, 3, 7, 7(2), 8, 8(1), and 15 - Council Directive 2004/83/EC, recitals 1, 2, 3, 4, 5, 6, 8, 9, 17, 18, 21, 24, 25 and 26 - Council Directive 2005/85/EC, articles 3, 4(2), 5, 8, 10 and 24(3)(i) - Council Directive 2005/85/EC, recital 6 - European Convention on Human Rights and Fundamental Freedoms, articles 3 and 8 - United Nations Convention Relating to the Status of Refugees 1951 (Geneva Convention) - Protocol Relating to the Status of Refugees 1967 (New York Protocol) - Relief refused (2007/1432, 1528 & 1641JR - Charleton J - 24/4/2008) [2008] IEHC 107

N(F) & Others v Minister for Justice, Equality and Law Reform

Facts: Representations were made from the applicants seeking subsidiary protection having been refused refugee status arising from alleged persecution in Nigeria to the respondent Minister. None of the applicants were Irish citizens. The issue arose as to the appropriate procedure to adopt and the application of Council Directives 2004/83/EC and 2005/85/EC and whether the Minister had to consider the new rights asserted under the process.

Held by Charleton J. that in an application for subsidiary protection, the individual must have already ventilated in their claim their risk of persecution in their country of origin. The primary focus was the risk. Up to date country of origin information was essential. Nothing in the Procedures Directive required that a non citizen seeking subsidiary protection had the same process as that for refugee status. The applicants were thus not entitled to review the Minister's decision refusing them subsidiary protection.

Reporter: E.F

REFUGEE ACT 1996 S2

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S11(B)

IMMIGRATION ACT 2003 S7(F)

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

IMAFU v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'BRIEN) UNREP CLARKE 27.5.2005 2005/31/6380 2005 IEHC 182

KIKUMBI v REFUGEE APPLICATIONS CMSR & ORS UNREP HERBERT 7.2.2007 2007 IEHC 11

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S5

IMMIGRATION ACT 1999 S5(2)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 2(1)

EEC DIR 2004/83 ART 7(2)

EEC DIR 2004/83 ART 15

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

EEC DIR 2004/83 ART 2

EEC DIR 2004/83 RECITAL 26

EEC DIR 2004/83 ART 15

EEC DIR 2004/83 ART 7

EEC DIR 2004/83 ART 8(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 7

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 8

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

UNITED NATIONS PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967 (NEW YORK PROTOCOL)

EEC DIR 2004/83 RECITAL 2

EEC DIR 2004/83 RECITAL 3

EEC DIR 2004/83 RECITAL 4

EEC DIR 2004/83 RECITAL 5

EEC DIR 2004/83 RECITAL 6

EEC DIR 2004/83 RECITAL 7

EEC DIR 2004/83 RECITAL 8

EEC DIR 2004/83 RECITAL 25

EEC DIR 2004/83 RECITAL 17

EEC DIR 2004/83 RECITAL 18

EEC DIR 2004/83 RECITAL 21

EEC DIR 2004/83 RECITAL 24

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

AGBONLAHOR v MIN JUSTICE & AG UNREP FEENEY 18.4.2007 2007 IEHC 166

KOUAYPE v MIN JUSTICE UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2005 IEHC 424

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

I (EP) & ORS v MIN JUSTICE UNREP FEENEY 30.1.2008 2008 IEHC 23

EEC DIR 2005/85 ART 3

EEC DIR 2005/85 ART 5

EEC DIR 2005/85 ART 10

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S15

IMMIGRATION ACT 1999 S11(1)(J)

IMMIGRATION ACT 1999 S3(2)(F)

EEC DIR 2005/85 ART 8

H (N) & ORS v MIN JUSTICE UNREP FEENEY 27.7.2007 2007 IEHC 277

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

REFUGEE ACT 1996 S17(1)(A)

REFUGEE ACT 1996 S17(1)(B)

INTERNATIONAL FISHING VESSELS v MIN MARINE 1989 IR 149

EEC DIR 2005/85 ART 4(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 5(2)

QUINN v IRELAND 2007 2 ILRM 101

EUROPEAN COMMUNITIES ACT 1972 S3(2)

ANIMAL REMEDIES ACT 1993

1 JUDGMENT of Mr. Justice Charleton J. delivered on the 24th day of April, 2008

2 1. All of the applicants are persons who have come from Nigeria to Ireland and who have unsuccessfully claimed to be refugees from persecution as defined by s. 2 of the Refugee Act 1996, as amended. None of them are in possession of passports or national identity documents. At the conclusion of the statutory process whereby a declaration of refugee status might have been made in their favour, all of them were written to by the respondent Minister, pursuant to his obligation under s. 3 of the Immigration Act 1999, asking them for representations as to why they should not be deported. Council Directive 2004/83/EC of the 29 ^th April, 2004 on minimum standards for the qualification and status of third country nationals, or Stateless persons as refugees, or as persons who otherwise need international protection and the content of the protection granted, O.J. L30A/12 30.9.2004, (the subsidiary protection Directive), was brought into force in Irish law by virtue of the European Communities (Eligibility for Protection) Regulations 2006, S.I. number 518 of 2006. The applicants were also written to on or after 10 ^th October, 2006, the date on which the aforementioned legislation came into force, asking them whether they were seeking subsidiary protection and seeking representations on that account as well. In response, representations from the several applicants for subsidiary protection were made. This status was subsequently refused by the respondent Minister in respect of all of them. In essence, the several applicants argue that the decision by the respondent Minister to refuse to grant them subsidiary protection was made by a procedure which was in breach of their rights. The correct procedure, they argue, that must be applied where an issue arises as to whether a failed asylum seeker is entitled to subsidiary protection is one which is equivalent to the statutory mechanism for the granting of a declaration of refugee status under the Refugee Act 1996, as amended. Further, it is argued that this Court, in reviewing the decisions of the respondent Minister refusing subsidiary protection, should apply the case law of the Superior Courts applicable to refusals of refugee status and not merely the principles which the courts have worked out in respect of the discretionary power of the respondent Minister to allow a failed asylum seeker to stay in Ireland on humane grounds and in respect of the duty of the respondent Minister to uphold the principle of non-refoulement.

3 2. All the parties accept that an application for subsidiary protection cannot be made before the Refugee Applications Commissioner, and nor can a refusal of such...