NH v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 27 July 2007
• Neutral Citation: [2007] IEHC 277
• Court: High Court
• Docket Number: [2006 No. 1394 JR & 2007 No. 68 JR]
• Date: 27 July 2007

H (N) v Min Justice

JUDICAL REVIEW

BETWEEN

N.H.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

BETWEEN

T.D.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2007] IEHC 277

[No. 1394 JR/2006]

[No. 68 JR/2007]

THE HIGH COURT

IMMIGRATION LAW

Deportation

Subsidiary protection - Ministerial discretion - Whether discretion vested in Minister to consider applications for subsidiary protection from persons already subject of deportation order - Whether valid refusal to exercise ministerial discretion - European law - Transposition of Directive - Whether Directive properly transposed into national law - Whether applicants subject to deportation order made prior to date of commencement of transposing Regulations having automatic right to apply for subsidiary protection thereunder - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Council Directive 2004/83/EC - Refugee Act 1996 (No 17), s 5 - Certiorari granted (2006/1394JR & 2007/68JR - Feeney J - 27/7/2007) [2007] IEHC 277

H(N) v Minister for Justice

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S2

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 SCHED 1

P & L & B v MIN FOR JUSTICE & AG 2002 1 IR 164 2002 1 ILRM 38 2001 20 5496

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(8)

EEC DIR 2004/83 ART 15

REFUGEE ACT 1996 S17(7)

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S4(2)

LAWLOR v MIN FOR AGRICULTURE 1990 1 IR 356

EASYCAR (UK) LTD v OFFICE OF FAIR TRADING UNREP ECJ 10.3.2005 (CASE NO C-336/03

EEC DIR 2004/83 RECITAL 24

EEC DIR 2004/83 ART 21

EEC DIR 2004/83 ART 2

REFUGEE ACT 1996 S5(1)

EEC DIR 2004/83 ART 15(c)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4(1)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

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

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

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S1(1)

CRIMINAL JUSTICE ACT 2006 S186

EEC DIR 2004/83 ART 38

EEC DIR 2004/83 ART 4

EEC DIR 2004/83 RECITAL 25

EEC DIR 2004/83 ART 18

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S3

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S4

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S4(1)

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S4(1)(b)

EUROPEAN UNION (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 S4(5)

EEC DIR 2004/83 RECITAL 6

IMMIGRATION ACT 1999 S3(2)(f)

FARRELL v WHITTY, MIN ENVIRONMENT, IRELAND, AG & MIBI UNREP EUROPEAN COURT OF JUSTICE 19.4.2007 (CASE NO C-356/07)

1 Mr. Justice Feeneydelivered on the 27th day of July, 2007

2 This judgment is circulated in redacted form to avoid identification of the parties

3 In both the above cases the Applicants seek orders quashing the refusal by the Respondent to consider applications for subsidiary protection made by both of them and requiring the Respondent to process and determine the said applications.

4 In each case the Applicant is a person who has been refused a declaration of refugee status and also, has been refused leave to remain in the State and both Applicants are the subject of a lawful deportation order.

5 The Applicant N.H. arrived in Ireland in August, 2004 and applied for refugee status. He is a national of his country of origin, who was born on the 24 ^th November, 1963. Mr. H. is of homosexual orientation and claimed that he suffered persecution as a result of his sexuality throughout his adult life in his country of origin and was subject to numerous assaults. Mr. H. claimed that the police in his country of origin both failed and/or refused to assist him and that if he is returned to his country of origin that he will face a real risk to his life or would be at risk of serious harm. Mr. H. pursued an application for refugee status and the Refugee Applications Commissioner recommended that he should not be declared a refugee. That recommendation was appealed to the Refugee Appeals Tribunal and following an oral hearing it was determined that Mr. H. was not a refugee and had not established a well founded fear of persecution and the recommendation of the Refugee Applications Commissioner was affirmed. That decision was contained in a written decision of the 9 ^th May, 2005. Mr. H. was informed of that decision by letter dated 13 ^th May, 2005. By letter dated 16 ^th September, 2005 a solicitor from the Refugee Legal Service acting on behalf of Mr. H. submitted an application pursuant to s. 3 of the Immigration Act, 1999, seeking leave to remain in the State. It was expressly submitted that the return of Mr. H. to his country of origin would submit him to a breach of his fundamental human rights and in particular Article 5 of the EuropeanConvention on Human Rights and it was requested that the Minister should exercise his discretion in respect of Mr. H. and grant him leave to remain in the State. On the 12 ^th July, 2006 the Minister for Justice, Equality and Law Reform made a deportation order in respect of Mr. H. and he was informed of the making of such order by letter dated the 27 ^th July, 2006. In that letter the Minister determined that having regard to the factors set out in s. 3(6) of the Immigration Act, 1999, including the representations made on Mr. H.'s behalf that the Minister was satisfied that the interest of public policy and the common good in maintaining the integrity of the asylum and immigration system outweighed such features of his case as might tend to support him being granted leave to remain in the State. The Minister was also obliged prior to making such order to have regard to s. 5 of the Refugee Act 1996 in relation to prohibition of refoulement.

6 By letter dated the 11 ^th November, 2006 solicitors acting for Mr. H. applied to the Respondents for subsidiary protection under the European Communities (Eligibility for Protection) Regulations S.I. No. 518/2006 (The Regulations). The basis of such application was that the Applicant was claiming serious harm based upon torture or inhuman or degrading treatment or punishment of the Applicant in the country of origin and the application was accompanied by a number of "country of origin" documents. The letter enclosing the application for subsidiary protection was responded to by letter of the 22 ^nd November, 2006 from the Department of Justice, Equality and Law Reform, wherein it was stated that the effect of the provisions of the 2006 Regulations S.I. 518/2006 was that the Regulations were not applicable in cases where a deportation order had been made by the Minister for Justice, Equality and Law Reform before the coming into operation of those Regulations on 10 ^th October, 2006. It was stated that those Regulations are operative from the 10 ^th October, 2006and do not operate retrospectively and that in Mr. H.'s case since the deportation order was signed by the Minister on the 12 ^th July, 2006 and was notified to him by registered letter dated 27 ^th July, 2006 that the Assistant Principal Officer in the Reparation. Unit had concluded that the provisions of the European Communities (Eligibility for Protection) Regulations 2006, did not apply to Mr. H. and that the Assistant Principal Officer therefore made a decision on behalf of the Minister that the application under the Regulations is invalid and must be refused. It is the decision made on behalf of the Minister to refuse to process Mr. H.'s claim for subsidiary protection which is the subject matter of his judicial review.

7 T.D. was born on the 20 ^th January, 1945 and arrived in Ireland at the end of June, 1999. Ms. D. came from her country of origin and she claimed that she left that country because her life was endangered due to her daughter's involvement with a student political group. Ms. D. was interviewed in relation to her application for refugee status on the 4 ^th September, 2001 and a report was duly made on the 5 ^th October, 2001 to the effect that Ms. D. had not established a case to qualify for refugee status and that a recommendation to that effect should be made. On the 10 ^th October, 2001 the Refugee Applications Commissioner determined that she was satisfied that the Applicant had failed to establish a case to qualify her for refugee status and it was recommended that she should not be declared a refugee. That recommendation was appealed to the Refugee Appeals Tribunal and following an oral hearing on the 11 ^th September, 2002 a member of the Refugee Appeals Tribunal decided in a report dated the 18 ^th November, 2002 that the Applicant had failed to establish a well founded fear of persecution for a convention reason in accordance with s. 2 of the Refugee Act, 1996 (as amended) and that accordingly Ms. D.'s appealwas dismissed and the recommendation of the Refugee Applications Commissioner was affirmed.

8 By letter dated the 25 ^th February, 2003 Ms. D. was informed of the intention of the Minister to make a deportation order pursuant to the powers given to him under s. 3 of the Immigration Act, 1999 and that in accordance with s. 3 of the Immigration Act, 1999 Ms. D. was entitled to make written representations to the Minister setting out any reasons why she should be allowed to remain within the State and indicating that if she wished to avail of the opportunity to make such representations that she. must do so within a period of fifteen days. Written representations were duly made by letter dated the 4 ^th March, 2003 from the solicitors acting for Ms....