O (N) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Sean Ryan
• Judgment Date: 14 December 2011
• Neutral Citation: [2011] IEHC 472
• Court: High Court
• Date: 14 December 2011

[2011] IEHC 472

THE HIGH COURT

[No. 474 J.R./2011]

O (N) v Min for Justice & Ors

[2011] IEHC 472

JUDICIAL REVIEW

BETWEEN

N O

APPLICANT

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

IMMIGRATION ACT 1999 S3

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

EEC DIR 2004/83 ART 4(1)

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

A (MM) v MIN FOR JUSTICE UNREP BIRMINGHAM 24.3.2011 (EX TEMPORE)

M (IM) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP COOKE 26.7.2011 2011 IEHC 309

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011 IEHC 370

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011 IEHC 381

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

N (FR) & ORS v MIN FOR JUSTICE 2009 1 IR 88 2008/45/9787 2008 IEHC 107

REFUGEE ACT 1996 S8

EEC DIR 2004/83 ART 4(2)

REFUGEE ACT 1996 S16(6)

EEC DIR 2005/85 ART 14(2)

EEC DIR 2004/83 ART 4

EEC DIR 2005/85 ART 3(3)

A (F) (IRAQ) v SECRETARY OF STATE FOR THE HOME DEPT 2011 4 AER 503 2011 3 CMLR 23 2011 UKSC 22

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

IMMIGRATION LAW

Subsidiary protection

Deportation order -- Leave application - Substantial grounds - Stateable case - Humanitarian grounds - Country of origin information - Whether substantial grounds - Whether stateable case - Whether applications properly considered - Whether s 3 of Act of 1999 disproportionate and unconstitutional - Whether incompatible with Convention - Whether Directive properly transposed into domestic law - Whether applicant's claim considered in accordance with SI 518/2006 - Whether effective remedy - A(MM) v (Unrep, Birmingham J, 24/3/2011); M(IM) v Minister for Justice and Equality (Unrep, Cooke J, 27/7/2011); L(S) v Minister (Unrep, Cooke J, 6/10/2011) and A(BJS)(Sierra Leone) v Minister for Justice, Equality and Law Reform [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); N(F) v Minister for Justice [2008] IEHC 107, [2009] 1 IR 88 and A(F)(Iraq) v Secretary of State for Home Department [2011] UKSC 22, [2011] 4 All ER 503 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Immigration Act 1999 (No 22), s 3 - Criminal Justice (United Nations Convention against Torture) Act 2000 (No 11), s 4 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - EU Directive 2004/83/EC, art 4 - European Convention on Human Rights, art 8 - Treaty on the Functioning of the European Union, art 267 - Leave refused (2011/474JR - Ryan J - 14/12/2011) [2011] IEHC 472

O(N) v Minister for Justice and Equality

Facts The applicant sought leave to quash by way of judicial review a decision of the first named respondent refusing to grant the applicant subsidiary protection and also a deportation order issued by the respondent. The applicant submitted that Article 4.1 of EU Directive 2004/83/EC (the Qualification Directive) was not properly transposed into Irish law by SI 518/2006. More specifically, the applicant submitted that there was no reference in SI 518/2006 to the "requirement to co-operate with an applicant in the assessment of the relevant elements of the application". It was also alleged that the respondent failed to comply with his duty to co-operate with the applicant. The applicant also complained that the failure to provide an effective remedy rendered the subsidiary protection decision and the deportation order invalid and further that the failure to provide an appeal mechanism in respect of a subsidiary protection decision breached the principle of equivalence when compared with asylum claims. Finally, the applicant argued that this Court ought to refer the question to the Court of Justice of the European Union asking 'whether the subsidiary protection regime, insofar as it does not provide for an appeal, is deficient in point of effective remedy and/or equivalence'.

Held by Ryan J. in refusing the application: That the applicant's arguments in respect of the co-operation requirement provided for in Article 4.1 of the Qualifications Directive and the issues of effective remedy and equivalence were considered and rejected by this court in the cases of MAA (Unreported High Court, Birmingham J. 24 March 2011), IMM (Unreported High Court, Cooke J. 27 July 2011), SL (Unreported High Court, Cooke J. 6 October 2011), BJSA (Unreported High Court, Cooke J. 12 October 2011) and FN [2009] 1 IR 88. Those decisions essentially determined that the duty of co-operation in the asylum process was fulfilled when determining the initial application for refugee status. There respondent was obliged to consider certain information and documentation in co-operation with the applicant but was not obligation to conduct the entire investigation into subsidiary protection with the co-operation of the applicant. The applicant's arguments in respect of the consideration by the respondent of the application for subsidiary protection and the making of the deportation order were couched in general terms and were theoretical rather than related to the facts. Furthermore, as has already been decided in the cases referred to, Ireland does not have a unitary system and consequently the Procedures Directive does not apply to the consideration of subsidiary protection applications. Finally, this court was not bound by the decision of another Judge to refer a question on the point as to co-operation in Article 4 of the Qualifications Directive to the Court of Justice of the European Union and this was not in itself a reason to grant judicial review.

Reporter: L.O'S

1 JUDGMENT of Mr. Justice Sean Ryan delivered the 14th December 2011.

2 This is an application for leave to bring judicial review proceedings to quash (a) a decision of the Minister refusing to grant the applicant subsidiary protection which was made on the 28 ^th March, 2011 and (b) a deportation order issued in respect of the applicant and dated the 21 ^st April, 2011.

3 The standard of examination of the two applications is different. In order to get leave to challenge the deportation order the applicant is required to establish substantial grounds, pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The ordinary standard for obtaining leave under O.84 applies to the refusal of subsidiary protection, namely, to establish a stateable case, an arguable case in law.

4 The factual background to the case may be summarised as follows. The applicant left Nigeria on the 24 ^th June, 2006, and arrived in the State on the 1 ^st September, 2006. She was accompanied by two of her children and she was pregnant at the time. The applicant gave birth to triplet boys on the 24 ^th September, 2006. She applied for asylum. Her application for refugee status was refused by the Commissioner on the 23 ^rd January, 2007. She appealed against that refusal to the Refugee Appeals Tribunal which recommended on the 12 ^th January, 2010, that the refusal decision should be affirmed. The applicant was duly noted of the result and was informed of her entitlement to apply under s. 3 of the Immigration Act 1999, for leave to remain on humanitarian grounds. The applicant applied through her solicitors on the 1 ^st March, 2010, for subsidiary protection and she also applied for humanitarian leave to remain. The application for subsidiary protection was refused in a decision dated the 28 ^th March, 2011. A deportation order was signed on the 21 ^st April, 2011, a deportation order the applicant and her legal representatives were notified of the making of the order by letter of the 27 ^th May, 2011.

5 By notice of motion dated the 4 ^th July, 2011, the applicant applied to this Court for leave to apply by way of judicial review for the following reliefs:-

6 2 "1. Certiorari to quash the refusal to grant subsidiary protection dated the 28 ^th March, 2011.

7 2. Certiorari to quash the deportation order dated the 21 ^st April, 2011.

8 3. An injunction restraining the deportation of the applicant pending the determination of the proceedings.

9 4. A declaration that s. 3 of the Immigration Act 1999, is disproportionate and therefore unconstitutional and/or incompatible with the European Convention on Human Rights and/or in breach of EU law because the deportation order is indefinite and, it is submitted, therefore lifelong.

10 5. A declaration that the common law rules governing judicial review as they apply to a deportation order are unconstitutional.

11 6. A declaration that the European Communities (Eligibility for Protection) Regulations 2006/ SI 518/2006 fails to transpose the provisions of EU Directive 2004/83/EC properly into Irish domestic law.

12 7. A declaration that the applicant's claim was not considered in accordance with Article 5(2) of SI 518/2006.

13 8. A declaration that the unavailability of an effective remedy under the impugned decisions renders the decisions invalid.

14 9. A declaration that the State is in breach of its positive obligations to protect the fundamental rights of applicants under the Constitution and/or the European Convention on Human Rights and/or the Charter of Fundamental Rights of the European Union.

15 10. Further and other relief.

16 11. Costs."

17 The statement required to ground the application for judicial review repeats theses reliefs and furnishes the following grounds for the reliefs:-

18 1. Article 4.1 of EU Directive 2004/83/EC of the 24 ^th April, 2004, (the Qualification Directive) was not properly transposed into Irish law by SI 518/2006....