T. A. (Minor Suing Through His Mother and Next Friend C. A.) v Minister for Justice and Equality and Others
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Colm Mac Eochaidh |
| Judgment Date | 14 November 2014 |
| Neutral Citation | [2014] IEHC 532 |
| Date | 14 November 2014 |
| Docket Number | [2013 No. 751 JR] |
BETWEEN
AND
[2014] IEHC 532
THE HIGH COURT
Asylum - Mother and son - Refugee status - Applications for subsidiary protection - Judicial review - Plenary proceedings more appropriate procedure to obtain the relief sought - Formal permission to be in the State during the subsidiary protection process - Unlawful procedures for determining subsidiary protection - Prohibition of employment and social welfare - Illegality of "direct provision" - Human rights
Facts The applicant mother is a Ugandan national. She arrived in Ireland in April 2010 and applied for asylum upon arrival. She gave birth to her son in Ireland in January 2011. Her asylum application was based on an alleged fear of female genital mutilation within the Ugandan community, yet she was refused refugee status owing to negative credibility findings. Subsequently, she applied for subsidiary protection and humanitarian leave to remain for herself and her son. Initially she was placed in an accommodation centre in Dublin pending her subsidiary protection application; however she was later moved to Galway where she lived for three and a half years. She sought to challenge the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal by way of judicial review. She stressed there was an absence of formal permission to be in the State during the subsidiary protection process; that unlawful procedures were in place to determine subsidiary protection applications; she took issue with the ban on employment and social welfare payments and argued the "direct provision" system was illegal and ultra vires. "Direct provision" is a cashless provision of material support offered by the State to protection applicants in order to meet their basic needs i.e. accommodation, food, education for those under 18, healthcare and a small weekly allowance known as the DPA. The applicants complained of the current system, with particular reference to the lack of mainstream social welfare payments, prohibition on employment and the detailed rules applied in accommodation centres. They believed the "direct provision" system was in breach of the principle of the separation of powers; that it breached/interfered with constitutional and fundamental human rights and that the process was unlawful in relation to access to social welfare and the employment market.
Held The judge was not able to discern from s.7A Refugee Act 1996 any intention to establish a body which would have responsibility to oversee the material needs of applicants. He said s.7A was clear – its purpose was to report on the operation of the Refugee Act 1996. He stressed the Act made no provision for the manner in which applicants receive support, thus no illegality attached to the decision of the Minister of Justice. The judge highlighted the change to the "direct provision" scheme and access to social welfare. He explained in 2004 the government amended the social welfare code to exclude asylum seekers - a recipient had to be habitually resident in the State at the time of their application. Under s. 246 (7) (b) and (c) Social Welfare Consolidation Act 2005 the applicants were not habitually resident. They were therefore statutorily prevented from satisfying the habitual residence condition and excluded from receiving mainstream social assistance payments. In relation to the employability of the applicant, the judge referred to Regulation 4 (7)(b) European Union (Subsidiary Protection) Regulations 2013 whereby an applicant for subsidiary protection is prohibited from seeking/entering employment or carrying on any business, trade or profession. The applicant described the negative effects she had been subjected to as a result of the "direct provision" system. The respondents vehemently denied the allegations. A dispute as to fact ultimately arose. The judge said the applicants could have sought a plenary hearing but did not; they could have requested cross examination of the respondents on their affidavits but did not; they could have filed affidavits by suitably qualified persons as to the effects of "direct provision" but they did not. The judge ruled the applicants thereby failed to discharge the burden of proof to establish that "direct provision" had the negative effects alleged. The judge held the applicants failed to establish that "direct provision" breached their human rights (arising under the Constitution or the European Convention on Human Rights). He believed some of the RIA House Rules and the complaints handling procedure were unlawful. He said the applicant"s human rights claim ultimately failed because they pursued the claim without oral evidence and they did not cross examine the respondent"s witnesses who denied that direct provision was harmful. The judge invited the parties to address the Court on what form of Order should issue to reflect the court"s decisions.
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