R.H. (Albania) v The Chief International Protection Officer

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 October 2018
• Neutral Citation: [2018] IEHC 559
• Docket Number: [2018 No. 669 J.R.]
• Court: High Court
• Date: 08 October 2018

[2018] IEHC 559

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 669 J.R.]

BETWEEN

R.H. (ALBANIA)

APPLICANT

AND

THE CHIEF INTERNATIONAL PROTECTION OFFICER

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

International protection – Notice party – Stay – Applicant seeking an order making the IPAT a notice party – Whether refusal of a stay after leave has been granted is a breach of the principle of effectiveness

Facts: The applicant arrived in the State from Spain on 21st February, 2017 with false Italian documents and was returned from whence he came the following day. He came back to the State on 11th March, 2017 with false French documents and applied for international protection. That was refused and the applicant was so notified by letter dated 11th July, 2018. Humphreys J granted leave challenging that decision on 31st July, 2018 and on 4th September, 2018 the applicant got notice of the date of a proposed tribunal hearing on 16th October, 2018. He sought an adjournment, which was refused by the IPAT in a letter dated 2nd October, 2018 on the basis of the jurisprudence in H.T.K. v Minister for Justice, Equality and Law Reform [2016] IEHC 43 and Humphreys J's decision in N.A. v Chief International Protection Officer [2018] IEHC 499. The applicant applied on notice (relying on an ex parte docket for that purpose rather than a notice of motion, having regard to Practice Direction HC 78) for essentially two reliefs: firstly, an order making the IPAT a notice party, and secondly, a stay on the operation of the IPO decision pending the determination of the proceedings. In oral submissions, the applicant expanded this to seek the alternative option of a stay pending the determination of the matters before the Court of Appeal.

Held by the High Court (Humphreys J) that an order making the IPAT a notice party seemed an appropriate step given the nature of the substantive application being made. Humphreys J held that the applicant's submission that refusal of a stay after leave has been granted is a breach of the principle of effectiveness was fundamentally misconceived. Humphreys J held that refusal of a stay did not deprive the applicant of a remedy; rather, it changed the nature of the remedy. Humphreys J held that instead of it being primarily judicial review, the remedy would be the IPAT appeal, which is a full rehearing on matters of fact and law.

Humphreys J held that there would be an order adding the IPAT as a notice party and that the application for a stay would be refused.

Application granted in part.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of October, 2018

1 This stay application is the latest consequence of the litigation relating to the unlikely assertion that the first instance protection process cannot lawfully be carried out with the assistance of contractors.

Legal background

2 By way of background, I rejected leave on that point in M.Y.A. v. Refugee Applications Commissioner [2016] IEHC 647 [2016] 11 JIC 1405 (Unreported, High Court, 14th November, 2016) and refused leave to appeal to the Court of Appeal in M.Y.A. v. Refugee Applications Commissioner (No. 2) [2017] IEHC 73 [2017] 2 JIC 1302 (Unreported, High Court, 13th February, 2017). Leave to apply was then granted on leapfrog appeal by the Supreme Court in I.G. v. Refugee Applications Commissioner [2018] IESC 25 (Unreported, Supreme Court, 16th May, 2018).

3 In N.A. v. Chief International Protection Officer [2018] IEHC 499 [2018] 9 JIC 1001 (Unreported, High Court, 10th September, 2018) I refused a...