Okunade & ors -v- Minister for Justice and Equality & ors, [2018] IESC 56 (2018)

Docket Number:222/12
Party Name:Okunade & ors, Minister for Justice and Equality & ors

[Appeal No: 222/12]

Clarke C.J.

O’Donnell J.

O’Malley J.




Judgment of O’Donnell J delivered the 14th day of November 2018

1 This case illustrates many of the unsatisfactory features of the law in Ireland relating to applications for asylum, subsidiary protection, humanitarian leave to remain, and the procedures for judicial consideration of such matters, with particular reference to the law relating to subsidiary protection applications as it applied in Ireland in the early years of this century.

2 This case is an appeal against a refusal of leave to seek judicial review by the High Court (Cross J.) delivered in March 2012. It is a case of almost archaeological interest since it is an artefact which provides an insight into the progress of legal argument on the question of the status of applications for subsidiary protection (pursuant to Council Directive 2004/83/EC), particularly in the period between 2006 and 2013, when the matter was regulated in Ireland by the provisions of the EC (Eligibility for Protection) Regulations of 2006. During that period Ireland operated what has been described as a bifurcated system in that the application for subsidiary protection was dealt with in a separate system to applications for refugee status. An application for asylum was dealt with by the Office of the Refugee Applications Commissioner (“ORAC”), with the possibility of subsequent appeal to the Refugee Appeals Tribunal (“RAT”), before formal decision by the Minister for Justice and Equality, whereas an application for subsidiary protection although covering much of the same ground, was made directly to the Minister, processed by his or her department, and was not subject to any appeal, although it was of necessity subject to judicial review. The decision of the Minister while legally separate from the decision in relation to refugee status, was made after, and with the benefit of, the determination of the ORAC and RAT, and often on the self-same information.

3 Since the essence of both claims was the existence of a well founded fear of persecution or violence if returned to a country of origin, the application process often involved a battle of cut and paste, where slabs of country of origin information were submitted on behalf of the applicant, to be met by even more lengthy responses, all of which often appeared to follow a standard template. Information relating to the specific applicant was often more perfunctory in its content.

4 The bifurcated process gave rise to a number of systemic challenges, that is challenges which were not dependent on any aspect of an individual case, but rather challenged the system as a whole. It followed in theory, that such a challenge, if sustainable, could be raised by any unsuccessful applicant for subsidiary protection. Since any such challenge was made by judicial review, and there was no special application procedure, leave if granted, on a reasonably low threshold, would mean that a case would then be processed along with other judicial reviews, in a system already under resourced, and where an appeal would also inevitably give rise to further delay in an equally, if not more, under resourced process. Since the basis of most challenges was an asserted incompatibility with the governing EU law, any such challenge also gave rise to the possibility of a reference to the ECJ pursuant to Article 267 of the TFEU with all the attendant delay. The combination of these factors gave rise to the possibility of significant gridlock in the system, which in the event transpired.

5 Before turning to the facts of this case, it is helpful I think to trace, in relatively broad outlines, some of the generic challenges raised in order to place this 2012 case in its proper context. The first issue to gain significant traction and which in turn led to the grant of leave for judicial review and the making of a reference to the European Court of Justice, is what was described as the “cooperation point”. It was asserted that the requirement that the application for subsidiary protection be processed in cooperation with State authorities, imposed an obligation on the Minister to provide a draft of a decision to the applicant and an opportunity to make submissions thereon, prior to issuing a final decision on the application for subsidiary protection. In May 2011, that issue was the subject of a reference in a case MM v The Minister for Justice, Equality and Law Reform, [2011] IEHC 547 (High Court, Hogan J. 18th May 2011). In due course the decision on the reference was delivered by the ECJ in a judgment of the 22nd of November 2012 (Case C-277/11). That case rejected the contention that there was an obligation to provide a draft or an opportunity for submission prior to making a decision, but somewhat unusually offered more general observations on what was described as the importance of the right to be heard in the bifurcated system. When the case returned to the High Court, Hogan J. loyally applied what he understood to be the burden of the decision of the ECJ in this latter regard, and accordingly quashed the refusal of subsidiary protection on grounds that there had been no separate oral hearing and determination. That decision was appealed in due course, and the Supreme Court considered it was obliged itself to make a further reference to the ECJ to clarify what was required by the obligation to be heard in the circumstances of an application for subsidiary protection, consequent upon a full consideration of an application for refugee status. Once again, the ECJ delivered its decision in that regard (Case C-560/14 judgment of the Court delivered on the 9th of February 2017). Finally, the Supreme Court delivered judgment on the 14th day of February 2018 allowing the Minister’s appeal and dismissing the claim for certiorari of the refusal of subsidiary protection. This was the end...

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