Nawaz v Minister for Justice

JurisdictionIreland
JudgeO'Donnell J.
Judgment Date27 March 2015
Neutral Citation[2015] IESC 30
Docket Number87/2011
CourtSupreme Court
Date27 March 2015

[2015] IESC 30

THE SUPREME COURT

O'Donnell J.

McKechnie J.

Clarke J.

87/2011

Beween
Haq Nawaz
Applicant/Appellant
and
Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Respondents

Immigration – Refugee status – Subsidiary protection – Applicant seeking subsidiary protection – Whether there was undue delay

Facts: The applicant, Mr Nawaz, applied for subsidiary protection in July 2009. He had not previously applied for refugee status having always resolutely contended that he should not be obliged to apply for and be refused refugee status before applying for or seeking subsidiary protection. The first respondent, the Minister for Justice, Equality and Law Reform, refused to consider the application because it did not comply with the Irish regulations which provided that in order to be eligible for subsidiary protection, an Applicant must first have been refused refugee status. Proceedings were commenced and in October 2009 Cooke J granted leave to seek judicial review by way of certiorari quashing the Minister”s refusal to consider the application. The applicant also commenced separate plenary proceedings challenging the constitutionality of the two stage procedure. In December 2010, Ryan J refused the application for judicial review holding that it was permissible to require an applicant to establish that he was not entitled to refugee status as a precondition to any application for subsidiary protection. In May 2011 Laffoy J refused the State defendant”s motion to strike out the plenary proceedings. Both decisions were appealed to the Supreme Court. In November 2012 the Court reversed the decision of Laffoy J and held that the constitutional proceedings should be struck out. In relation to the substantive challenge, the Court considered that it plainly raised an issue of EU law which required to be referred to the ECJ pursuant to Art. 267 of the TFEU. The ECJ answered the question posed by the Court in the negative. On behalf of the applicant, it was argued that the Court should proceed to make an order of certiorari quashing the ministerial refusal of July 2009 on the grounds that the burden of the decision of the ECJ was that Irish law was not compliant with European Union law because it did not permit for application for refugee status and application for subsidiary protection to be made at the same time. It was also argued that the result was that Mr Nawaz”s application had been or was likely to be considered only after unreasonable delay and that he was therefore entitled to damages. He contended not only that he was entitled to an order of certiorari of the Minister”s decision of July 2009, but also, that certiorari would serve a useful purpose since it would have the consequential effect that his original application would still be extant, and this in turn would mean that a deportation order which had been made in the interim would become invalid. In response to the Minister”s argument that a present application could be made for international protection which, if successful, would mean the deportation order would have to be revoked, the applicant maintained that this was an unsatisfactory solution because there would have been an extant deportation order which he considered would constitute a form of black mark against him should he wish to travel to other countries.

Held by O”Donnell Donal J that the applicant cannot claim to be entitled to an order of certiorari in respect of the Minister”s refusal to consider his standalone application for subsidiary protection; that refusal was perfectly lawful. The Court held that since the applicant refused to make an application for refugee status he could not contend that the procedure adopted in Irish law for separate and consequential determination of refugee status and subsidiary protection had given rise to undue delay; such delay was due entirely to the judicial review proceedings initiated by the applicant on the basis of the legal issue determined by the ruling of the ECJ. O”Donnell Donal J held that any lapse of time could not be attributed to the operation of the system requiring that subsidiary protection should be considered after the determination of refugee status, for the obvious reason that the applicant never participated in that system; the applicant made his objection at the very outset, raising a point of law giving rise to these proceedings, which, in the light of the ruling of the ECJ, must now be determined against him.

O”Donnell Donal J held that the applicant”s appeal be dismissed and that the Court would hear the parties on the question of costs.

Appeal dismissed.

O'Donnell J.
1

This is the latest round in proceedings with a very tangled history. I propose to set out what I hope is a simplified account of the proceedings, in order to identify the issue which now arises for determination.

2

By letter of the 7th of July 2009 (almost 6 years ago) Mr Nawaz (who I will refer to hereafter as ‘the Applicant’) applied for subsidiary protection. He had not previously applied for refugee status. This is the central and perhaps fixed feature of this case. Mr Nawaz, through his representatives, has always resolutely contended that he should not be obliged to apply for and be refused refugee status before applying for or seeking subsidiary protection.

3

On the 27th of July 2009 the first named respondent (who I will refer to as ‘the Minister’) refused to consider the application because it did not comply with the Irish regulations which, provided that, in order to be eligible for subsidiary protection, an Applicant must first have been refused refugee status. The letter from the Minister stated:

‘the basis for making an application for subsidiary protection is that the person applying has been refused refugee status – see section 3(1)(c) of the subsidiary protection regulations the fact of the matter is that your client has not been formally refused refugee status in that no application respect of him was ever made to the office of the refugee applications Commissioner. The foregoing being the case an application for subsidiary protection cannot be made by your client’.

4

The roots of this case lie in the fact that Ireland has what this Court described inOkunade & Anor v. Minster for Justice, Equality and Law Reform & Ors [2012] 3 I.R. 152 as an unnecessarily complicated statutory regime for the consideration and judicial review of applications for international protection. In particular, applications for refugee status are decided or processed through the office of the Refugee Applications Commissioner and applications for subsidiary protection are dealt with by the Minister. That is a procedure which is capable of causing difficulties for applicants and for decision-makers. Here, the Applicant sought to challenge one aspect of that regime by...

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3 cases
  • F.M. v Minister for Justice
    • Ireland
    • Court of Appeal (Ireland)
    • 27 February 2020
    ...H.N. v Minister for Justice (Case C-604/12) EU:C:2014:302, [2014] 1 W.L.R. 3371, and by the Supreme Court in Nawaz v Minister for Justice [2015] IESC 30 and (indirectly) V.J. v Minister for Justice [2019] IESC 75. She agreed with the Minister’s submission that there was no legal issue ident......
  • F. M. v The Minister for Justice and Equality, Ireland and The Attorney General
    • Ireland
    • Court of Appeal (Ireland)
    • 12 April 2021
    ...The ruling of the CJEU in H.N. was applied by the Supreme Court in its judgment in the same case (cited as Nawaz v. Minister for Justice [2015] IESC 30) and was applied in V.J. v. Minister for Justice and Equality [2019] IESC 75. V.J. was, in turn, applied by this Court in F.M. and others v......
  • M.S. (Afghanistan) v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 16 March 2021
    ...be held to be a complete win for the State. Following the substantive judgment in Nawaz v. Minister for Justice, Equality and Law Reform [2015] IESC 30 (Unreported, Supreme Court, O'Donnell J., (McKechnie and Clarke JJ. concurring), 27th March, 2015), the Supreme Court allowed the costs of ......

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