A.S.A. v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 02 February 2022 |
| Neutral Citation | [2022] IESC 4 |
| Court | Supreme Court |
| Docket Number | [RECORD NO.: 70/2021] |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 (As Amended), and in the Matter of the International Protection Act, 2015
[2022] IESC 4
O'Donnell C.J.
MacMenamin J.
O'Malley J.
Baker J.
Hogan J.
[RECORD NO.: 70/2021]
THE SUPREME COURT
Leave to appeal – Determining authority – Directive 2005/85/EC – Appellant seeking to introduce an argument not previously argued in the High Court – Whether permitting the new point to be ventilated in the Supreme Court would run the risk of placing the Court in the position of a court of first instance
Facts: On 15th October, 2021, a panel of the Supreme Court granted the appellant leave to appeal to the Court to argue that the High Court had erred in concluding that the International Protection Act 2015 did not preclude an international protection officer, appointed by the respondent, the Minister for Justice and Equality, from making a decision relating to permission to remain in the State, when the appellant had been refused in an application for asylum and subsidiary protection made under s. 39(3) of the 2015 Act. The appellant submitted in the application for leave that, in her decision, Burns J in the High Court erred in finding that, by exercising the Minister’s “derived power” pursuant to s. 49 of the 2015 Act, international protection officers are not conflicted in the duties or functions they are mandated to execute in their role as independent officers pursuant to the 2015 Act ([2021] IEHC 276). The application and subsequent judgment were, therefore, based on an application of the doctrine of vires, known as the “Carltona principle” (Carltona Ltd v Commissioner of Works [1943] 2 All ER 560). The Carltona principle had been considered in many cases, most recently in the Supreme Court in W.A.T. (a minor) v Minister for Justice & Equality and Ors [2015] IESC 73). The grant of leave, therefore, identified the parameters for the appeal, based on the High Court judgment. The appellant brought a later application on the 6th January, 2022, seeking an order also permitting him to argue on the appeal that, in circumstances where the International Protection Office does not exist as a statutory body or entity, the International Protection Office, without staff or other personnel, was incapable of meeting the definition of a “Determining Authority” for the purposes of Article 4.1 of Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (the Procedures Directive).
Held by MacMenamin J that the case considered by Burns J was a matter of national law only. MacMenamin J noted that it did touch on the issue of whether or not a provision of national law could be interpreted having regard to EU law in relation to the decision which was actually under challenge, a measure of national law, where the appellant had been unsuccessful. MacMenamin J held that parties, including the respondent, have the right to have issues argued fully in the High Court. MacMenamin J held that issues may be re-argued on appeal to the Supreme Court, which is the final court of appeal, and it is only in exceptional circumstances that the Court will permit an issue to be argued that was not considered at first instance. MacMenamin J held that to permit the new point to be ventilated in the Court would, effectively, run the risk of placing the Court in the position of a court of first instance, and could place the respondent in a situation where, as a matter of strong possibility, evidential issues as to the actual application and operation of the Act might well arise, which might appropriately be a matter to be considered in evidence, and cross-examination. MacMenamin J held that, as a matter of fact, were the appellant to succeed in obtaining a declaration, it would follow, as a matter of high probability, that he would succeed in challenging a provision of the Act which had not ever been challenged, and where the application was out of time by many months. MacMenamin J held that the appellant would, effectively, be permitted to argue what was a systemic challenge in the Court effectively rendering the Court as a court of first instance, when it is a court of exclusively appellate jurisdiction.
MacMenamin J held that the application would be refused.
Application refused.
RULING delivered by Mr. Justice John MacMenamin dated the 2nd day of February, 2022
This is a ruling on an application brought by the appellant to introduce an argument not previously argued in the High Court. For reasons outlined in the body of this ruling, the Court will not accede to the application.
On 15th October, 2021, a panel of this Court granted the applicant leave to appeal to this Court to argue that the High Court had erred in concluding that the International Protection Act, 2015 does not preclude an international protection officer, appointed by the respondent, from making a decision relating to permission to remain in the State, when the applicant had been refused in an application for asylum and subsidiary protection made under s.39(3) of the 2015 Act. The applicant submitted in the application for leave that, in her decision, Tara Burns J. in the High Court erred in finding that, by exercising the Minister's “derived power” pursuant to s.49 of the 2015 Act, international protection officers are not conflicted in the duties or functions they are mandated to execute in their role as an independent officers pursuant to the 2015 Act ( [2021] IEHC 276). The application and subsequent judgment were, therefore, based on an application of the doctrine of vires, known as the “ Carltona principle” ( Carltona Ltd. v. Commissioner of Works [1943] 2 All ER 560). The Carltona principle has been considered in many cases, most recently in this Court in W.A.T. (a minor) v. Minister for Justice & Equality and Ors. [2015] 2 ILRM 225, [2015] IESC 73). The grant of leave, therefore, identified the parameters for the appeal, based on the High Court judgment.
This ruling concerns an application brought later, on the 6th January, 2022, where the appellant sought an order also permitting him to argue on this appeal that, in circumstances where the International Protection Office does not exist as a statutory body or entity, the International Protection Office, without staff or other personnel, was incapable of meeting the definition of a “Determining Authority” for the purposes of Article 4.1 of Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”).
To understand the effect of the application, it is necessary to set out some of the legislative background.
The essential issues which arise in this application derive from the provisions of ss. 39 and 49(4) of the International Protection Act, 2015 (“the 2015 Act”). This introduced a single procedure for the consideration and determination of applications for international protection. Thus, whether for the purposes of an application under s.39(3) for asylum or subsidiary protection, or, under s.49(4) for leave to remain, there will be only one application, which is then considered and examined upon all the grounds upon which reliance is placed. Such consideration may not only include grounds advanced in respect of a claim for refugee status and for subsidiary protection, but, additionally, any application for leave and permission to remain under s.49(4) of the 2015 Act, which will be dealt with on the same papers as the application for international protection. All decisions, therefore, will be made on foot of one application made under the 2015 Act. But the decisions are different in nature. The criteria are, of course, quite distinct. Additionally, a decision in relation to an application for refugee status and/or subsidiary protection, involves compliance with E.U. law procedures and Directives. By contrast, the decision of the Minister to grant or refuse leave to remain is primarily a matter of national law.
In applying for asylum or subsidiary protection under s.39(3) of the 2015 Act, the appellant received a questionnaire, together with a booklet for applicants for international protection. This booklet is headed “ Irish National Immigration Service” (“INIS”), beneath which is written “ International Protection Office” (“IPO”).
The appellant completed the questionnaire on 7th January, 2019. The document was stamped as having been received by the IPO on the 14th January, 2019. The questionnaire stated that the information provided would be used for the purposes of examination and determination of the application for international protection (Refugee Status and Subsidiary Protection), and, in the event of refusal, consideration of whether the Minister should grant the applicant permission to remain in the State on other grounds.
For this application, the affidavit sworn on behalf of the appellant sets out, inter alia, that after submitting the questionnaire, the appellant subsequently received a report, pursuant to s.39 of the International Protection Act, 2015. This document was signed “ Mairead Leneghan International Protection Officer, International Protection Office”. This was accompanied by a draft report to assist in the preparation of the s.39 report of the International Protection Act, 2015, which was signed “ Eamon Sanders, International Protection Office”. An additional document was entitled “ Report pursuant to s.35(12) of the International Protection Act, 2015”. The report communicated that the appellant was unsuccessful in his application for international protection.
Section 39 sets out detailed provisions regarding what is to be contained in a report of...
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