Nawaz v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 29 November 2012
• Neutral Citation: [2012] IESC 58
• Court: Supreme Court
• Docket Number: [S.C. Nos. 87 and 283 of 2011]
• Date: 29 November 2012

Nawaz v Minister For Justice & Ors

Between/

Haq Nawaz

Applicant/Appellant

and

Minister for Justice Equality and Law Reform, Ireland and The Attorney General

Respondents

Plaintiff/Respondent

Defendants/Appellants

[2012] IESC 58

Fennelly J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

[Appeal No: 87/2011]

[Appeal No: 283/2011]

THE SUPREME COURT

Judicial Review - Refugee status - Deportation - Application for subsidiary protection - Stand alone application - Constitutionality - Illegal Immigrants (Trafficking) Act 2000 - Immigration Act 1999 - Practice and procedure

Facts: These proceedings consisted of two appeals brought by the applicant in relation to international protection in Ireland. The first appeal concerned an application for judicial review that directive 2004/83/EC ("the qualification directive") had not been properly adopted. A person seeking international protection could seek refugee status or subsidiary protection. However, in order to apply for refugee status, a person must fear persecution by reason of a Convention right and in order to apply for subsidiary protection, refugee status must have already been refused. The applicant was not in fear of persecution and wanted to apply simply for subsidiary protection, but was unable to do so as a stand alone application.

The second appeal concerned the applicant issuing plenary proceedings seeking a declaration that s. 3 of the Immigration Act 1999 ("the 1999 Act") was inconsistent with the Constitution. This article laid out how a person notified of a proposed deportation order may leave the country voluntarily or apply to stay on humanitarian grounds, but if he applies for the latter and fails, he loses the chance to perform the former. The respondent had contended in the High Court that the proper method for this challenge was by judicial review pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") and applied to have the plenary proceedings struck out on that basis. This was refused and so the respondent appealed the decision. Both appeals were dealt with together.

In relation to the first appeal, the respondent contended that on the proper construction of the qualification directive, there was no interference by the Irish process that had been enacted. Ireland was admittedly unique among EU member states in that it had divided the application for refugee status and subsidiary protection but it was asserted that it worked within the parameters of the directive. It was deemed to be an acceptable course of action to require a person seeking subsidiary protection to apply for refugee status initially even knowing they could not succeed.

Held by Clarke J that in relation to the first appeal, a reference to the European Court of Justice would be ordered to determine whether the lack of a stand alone application for subsidiary protection fell foul of the construction of the qualification directive.

In relation to the second appeal, it was held that the court considered the reason the applicant decided to challenge the constitutionality of s. 3 of the 1999 Act was to make a pre-emptive action in case the respondent later refused an application for subsidiary protection, the ability to make a deportation being found under that same section. It was considered necessary to apply for judicial review to challenge the constitutionality on certain immigration matters to ensure leave of the court was granted before matters could proceed but once leave was granted, O.84 r.22(1) of the Rules of the Superior Courts allowed the court to direct the formal application be made by way of plenary summons. The need to apply in such a way initially was therefore seen as justifiable. In the present case, s. 3 of the 1999 Act was within the ambit of the requirements of s. 5 of the 2000 Act and leave to apply for judicial review proceedings should have been the course of action followed.

Appeal No. 87/2011 - order made for a reference from the ECJ. Appeal No. 283/2011 allowed

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012 IESC 49

N (H) v MIN FOR JUSTICE & ORS UNREP RYAN 15.12.2010 2010/39/9842 2010 IEHC 489

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

NAWAZ v MIN FOR JUSTICE UNREP LAFFOY 25.5.2011 (EX TEMPORE)

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

IMMIGRATION ACT 1999 S3(2)(F)

IZEVBEKHAI v MIN FOR JUSTICE 2011 1 ILRM 398 2010/23/5784 2010 IESC 44

EEC DIR 2004/83 ART 2(E)

IMMIGRATION ACT 1999 S3(3)(A)

IMMIGRATION ACT 1999 S3(3)(B)(ii)

GOONERY v MEATH CO COUNCIL & ORS UNREP KELLY 15.7.1999 1999/12/2990

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

LENNON v CORK CITY COUNCIL UNREP SMYTH 19.12.2006 2006/34/7172 2006 IEHC 438

RIORDAN v AN TAOISEACH & ORS (NO 2) 1999 4 IR 343

IMMIGRATION ACT 1999 S3(3)(B)

CAHILL v SUTTON 1980 IR 269

CURTIS v AG & REVENUE CMRS 1985 IR 458 1986 ILRM 428 1985/7/1908

DESMOND & DEDEIR v GLACKIN & ORS (NO 2) 1993 3 IR 67

COMPANIES ACT 1990 S10(5)

KSK ENTERPRISES LTD v BORD PLEANALA & ORS 1994 2 IR 128 1994 2 ILRM 1 1994/4/1176

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP 13.12.2010 2010/50/12672 2010 IEHC 492

U (MA) & ORS v MIN FOR JUSTICE (NO 2) 2011 1 IR 749 2011/48/13539 2011 IEHC 95

AHP MANUFACTURING BV T/A WYETH MEDICA IRL v DPP & ORS 2008 2 ILRM 344 2008/2/240 2008 IEHC 144

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

LELIMO v MIN FOR JUSTICE 2004 2 IR 178 2004/27/6362 2004 IEHC 165

NAWAZ v MIN FOR JUSTICE & ORS UNREP LAFFOY 7.7.2011 2011/40/11382 2011 IEHC 459

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(B)

RSC O.84 r22(1)

1. Introduction

2 1.1 These two appeals throw up yet further aspects of the regime for the consideration of international protection in Ireland. This court has already, in Okunade v. Minister for Justice, Equality and Law Reform & ors [2012] IESC 49, commented on the unnecessarily complicated statutory regime for the consideration and judicial review of applications for international protection. These appeals throw up two further aspects of that regime which it is, in my view, at least possible to describe as curious. The real issues which arise on both these appeals are as to whether the two aspects of the regime concerned go beyond being curious and fall foul of, in one case, the Constitution, and in the other case, relevant and applicable EU law.

3 1.2 The backgrounds to both cases are the attempts made by Mr. Haq Nawaz ("Mr. Nawaz") to remain in Ireland. Those attempts have a long and complicated history. It will be necessary to address some aspects of that history in due course. However, it is possible to set out in relatively brief terms the two aspects of the statutory regime which come under scrutiny in these appeals.

4 1.3 Appeal 87/2011 arises in proceedings ("the judicial review proceedings") in which Mr. Nawaz, as applicant, seeks judicial review designed to establish that one aspect of the current Irish statutory regime in respect of international protection is inconsistent with directive 2004/83/EC ("the qualification directive"). The qualification directive provides for international protection in the Member States of the EU. Two different categories of international protection are specified. The first is refugee status which, of course, has a wider international context going back to the Geneva Convention. The second is subsidiary protection which derives from the qualification directive itself. In simple terms Mr. Nawaz says that he does not qualify for refugee status for he does not fear persecution for a Convention reason. Nonetheless he does claim that he qualifies for subsidiary protection. As noted by this court in Okunade (see para. 2.4 of my judgment) it is necessary that a person have been refused refugee status, under the Irish regime, in order that such a person can apply for subsidiary protection. Mr. Nawaz asserts that the Irish regime, insofar as it appears to require him to make an application for refugee status, on what he describes as a "false" basis, before he can apply for subsidiary protection, is inconsistent with the qualification directive. Mr. Nawaz failed in his judicial review proceedings before the High Court (Ryan J.), ( Nawaz v. Minister for Justice, Equality and Law Reform [2010] IEHC 489), judgment in that regard being delivered on the 15 ^th December, 2010, and appeals against that finding to this court. As the point involved in that appeal is one of European Union law only, it follows that a determination of the relevant point of EU law is "necessary" to a finalisation of the appeal. As this court is the court of final appeal in Ireland it further follows, therefore, that this court is obliged to refer the matter to the European Court of Justice ("ECJ") unless the point is acte clair in accordance with the jurisprudence of the ECJ. This judgment (insofar as it relates to appeal 87/2011) is concerned, therefore, only with the question of whether the qualification directive is clear in permitting the relevant means of its implementation adopted in Ireland.

5 1.4 Appeal 283/2011 concerns plenary proceedings ("the plenary proceedings") commenced by Mr. Nawaz as plaintiff against the relevant Minister, Ireland and the Attorney General ("the State") in which he seeks, amongst other things, declarations to the effect that s. 3 of the Immigration Act, 1999 ("the 1999 Act") is inconsistent with the Constitution. It will be necessary to address the basis given to substantiate that allegation in due course. However, the broad statutory regime allows for a person who...