S.HM v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 829
• Docket Number: [2014 No. 512 J.R.]
• Court: High Court
• Date: 21 December 2015

[2015] IEHC 829

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2014 No. 512 J.R.]

BETWEEN

S.H.M.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – The Immigration Act 1999 – Revocation of deportation order – Subsidiary protection – Procedures Directive 2005/85/EC– Right to remain in the State – Re-cast Procedures Directive 2013/32/EU– Principle of equivalence

Facts: Following the grant of leave by the Court against the decision of the Refugee Applications Commissioner for refusing the second application for subsidiary protection on the basis that the ministerial consent was required, the applicant now sought declarations that the respondent was under duty to consider the said application and that it was unlawful to deport him pending the determination of that application.

Mr. Justice Richard Humphreys refused to grant the desired declaratory reliefs to the applicant. The Court, however, advised the respondent to dispose of the pending application of the applicant for subsidiary protection. The Court held that as per art. 7 (2) of the Procedures Directive 2005/85/EC, the right to remain in the State applied to a 'first instance' decision, which included re-application; however, reading the said art. 7 (2) in line with re-cast Procedures Directive 2013/32/EU, there was no basis to allege such right when the applicant had made both an application for re-admission to asylum process and re-application to subsidiary protection. The Court observed that both the asylum process and subsidiary protection came within the ambit of EU remedy and hence, the principle of equivalence would be of no aid.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 The applicant arrived in the State from the Democratic Republic of Congo in October 2006. His application for asylum was rejected by the Refugee Applications Commissioner in February 2007.

2 He then appealed to the Refugee Appeals Tribunal, which rejected his appeal in July, 2007. This was followed by a proposal to deport him from the Minister in October, 2007, following which he sought leave to remain.

3 On 22nd November, 2007, he applied for subsidiary protection. This was refused on 8th March, 2011.

4 A deportation order was made against the applicant on 15th July, 2011.

5 On 23rd July, 2012, the applicant applied for a revocation of the deportation order under s. 3(11) of the Immigration Act 1999, primarily on the ground that his return to the Democratic Republic of Congo would be unsafe. He also applied, on similar grounds, for readmission to the asylum process under section 17(7). While the section 3(11) application has yet to be determined, the s. 17(7) application was refused on 14th August, 2012.

6 On 24th August, 2012, he sought a review of that decision. This was refused on 4th September, 2012.

7 On 3rd September, 2013, he made an application to revoke the subsidiary protection decision. This application is also outstanding. My attention has not been drawn to any legal basis for this application and it would seem not to be a proper or available course. Where an asylum or subsidiary protection decision is alleged to require revocation, the appropriate course would appear to be an application under s. 17(7).

8 On 8th August, 2014, he made a second application for subsidiary protection, which was made in duplicate to the Minister and the Refugee Applications Commissioner. The application was acknowledged by the department on 19th August, 2014. On 22nd August, 2014, the Refugee Applications Commissioner replied refusing to process the application on the grounds that ministerial consent was required.

9 On 27th August, 2014, the present proceedings were filed.

10 On 3rd September, 2014, the application was moved in court before Cross J., who granted leave for a declaration sought at reliefs 1 and 2 in the grounding statement and also granted an injunction until the matter was next in court on 13th October, 2014.

11 On 13th October, 2014, the injunction was replaced by an undertaking not to deport the applicant which has been continued up to the date of the present judgment, when it expires.

12 By further correspondence dated 22nd January, 2015, and 15th June, 2015, the Chief State Solicitor on behalf of the Minister confirmed that a second application for subsidiary protection can only be considered in the context of a s. 17(7) application. This was reiterated by the department in a letter to the same effect on 25th November, 2015. Thus if there was any doubt about the matter, this amounts to a rejection of the 'application' for re-admission to the subsidiary protection system.

Relief Sought

13 The applicant seeks two reliefs pursuant to the order granting leave. Firstly, a declaration that the Minister is under a duty to consider his application for subsidiary protection made on 8th August, 2014. The applicant does not have a subsisting application under s. 17(7) in being. Therefore he can only pursue this relief if he demonstrates that the Minister is required to entertain a free-standing reapplication for subsidiary protection, rather than requiring such an application to be made in the context of an application for readmission to the asylum process.

14 Secondly, the applicant seeks a declaration that it is unlawful to remove him from the State pending the determination of that application.

Right to remain in the State

15 Article 7(1) of the Procedures Directive 2005/85/EC provides that:-

'Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III.'

16 Chapter III of the Directive is headed ' Procedures at First Instance' and covers Articles 23 to 36. Chapter III is divided into a number of sections, one of which is Section IV (unheaded) which contains Article 32 which is headed ' Subsequent application'. It is clear from the scheme of the Directive that a re-application for asylum is nonetheless a first instance decision for the purposes of the Directive including Article 7. Appeals procedures are dealt with in an entirely different part of the Directive, Chapter V, which consists of Article 39.

17 It is clear from Article 7(2) that this right remain is also capable of applying to a re-application: 'Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined', or where international criminal law arises.

18 It is clear that the right to remain applies while a ' first instance' decision is being made, but the term ' first instance' decision does not mean the first decision, it means a decision at the initial rather than appellate level. Crucially the phrase ' first instance' decision includes a re-application. There is no right to remain pending an appeal against a first instance decision, as is clear from Article 39(3)(a) of the 2005 Directive. Mr. David Conlan Smyth, S.C., who appeared (with Ms. Maeve Brennan, B.L.) for the respondent submitted that this Article applies to the original refugee application and any re-application, but on a reading of the scheme of the Directive, as set out...