T. A. (Minor Suing Through His Mother and Next Friend C. A.) v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 14 November 2014
• Neutral Citation: [2014] IEHC 532
• Date: 14 November 2014
• Court: High Court
• Docket Number: [2013 No. 751 JR]

A (C) & A (T) (a minor) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

C. A. AND T. A. (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND C. A.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE MINISTER FOR SOCIAL PROTECTION, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2014] IEHC 532

[No. 751 J.R./2013]

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.

EEC DIR 33/2013

EEC DIR 9/2003

REFUGEE ACT 1996 S7(A)

IMMIGRATION ACT 1999 S11

HOWARD & ORS v CMSRS OF PUBLIC WORKS 1994 1 IR 101 1993/3/683

SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S189

SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S246(7)(B)

SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S246(7)(C)

REFUGEE ACT 1996 S9(4)

EUROPEAN UNION (SUBSIDIARY PROTECTION) REGS 2013 SI 426/2013 REG 4(7)(B)

M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013/31/9140 2013 IEHC 9

COOKE v WALSH 1984 IR 710 1983 ILRM 429 1983/8/2150

DOS SANTOS & ORS v MIN FOR JUSTICE & ORS UNREP MCDERMOTT 19.11.2014 2014 IEHC 559

CONSTITUTION ART 15.2.1

SOCIAL WELFARE (CONSOLIDATION) ACT 2005 S246

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART 42.1

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 4 ART 2

EEC DIR 83/2004

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 1

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 3

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 4

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 15

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 20

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 21

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41

A L J & ORS, IN RE 2013 NIQB 88

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783 2011 1 ILRM 157 2010/36/8976 2010 IESC 45

S (MS) v BELGIUM 2011 53 EHRR 2 31 BHRC 313 2011 INLR 533 2011 ECHR 108

WILSON v FIRST COUNTY TRUST LTD (NO 2) 2003 UKHL 40 2004 1 AC 816 2003 3 WLR 568 2003 4 AER 97 2003 HRLR 33

A & ORS v SECRETARY OF STATE FOR THE HOME DEPT 2004 UKHL 56 2005 2 AC 68 2005 2 WLR 87 2005 3 AER 169

R v HALPIN 1975 QB 907 1975 3 WLR 260 1975 2 AER 1124 1975 61 CAR 97 1975 CRIM LR 453

EASTERN HEALTH BOARD v K (M) 1999 2 IR 99 1999 2 ILRM 321 2000/6/2188

CONSTITUTION ART 15.2

CONSTITUTION ART 40.3.1

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD ART 3

CONSTITUTION ART 42

O (O) v MIN FOR JUSTICE & ORS 2004 4 IR 426 2004/39/9098 2004 IEHC 426

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 18 10 BHRC 48 (APPLICATION NO 27238/95)

PRETTY v UNITED KINGDOM 2002 2 FLR 45 2002 2 FCR 97 2002 35 EHRR 1 12 BHRC 149 2002 66 BMLR 147 2002 FAM LAW 588 2002 152 NLJ 707 (APPLICATION NO 2346/02)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

NORRIS v AG 1984 IR 36

KENNEDY v IRELAND 1987 IR 587 1988 ILRM 472 1988/2/367

M v DRURY 1994 2 IR 8 1995 1 ILRM 108 1994/11/3447

KANE v GOVERNOR OF MOUNTJOY PRISON 1988 IR 757 1988/2/343

DPP v KENNY 1990 2 IR 124 1990 ILRM 569 1990/2/431

HAUGHEY v MORIARTY 1999 3 IR 1

ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491 2002/2/294

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

CONSTITUTION ART 40.5

OMAR v GOVERNOR OF CLOVER HILL PRISON 2014 1 ILRM 254 2013/42/12098 2013 IEHC 579

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 268

SAHIN v TURKEY 2007 44 EHRR 5 19 BHRC 590 2006 ELR 73 (APPLICATION NO 44774/98)

HRISTOZOV v BULGARIA UNREP ECHR 13.11.2012 (APPLICATION NOS 47039/11 & 358/12)

POK SUN SHUM v MIN FOR JUSTICE 1986 ILRM 593

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

COSTELLO-ROBERTS v UNITED KINGDOM 1994 1 FCR 65 1995 19 EHRR 112 1994 ELR 1 (APPLICATION NO 13134/87)

M (M) v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV) (CASE C-277/11)

M (M) v MIN FOR JUSTICE & ORS (NO 3) 2013 1 IR 370 2013/31/9140 2013 IEHC 9

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PART 3 TITLE 5

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PROTOCOL 21 ART 3

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION PROTOCOL 21 ART 4

EEC DIR 85/2005

EEC REG 343/2003

EEC REG 2725/2000

PFLEGER, IN RE 2014 3 CMLR 47 (CASE C-390/12)

O'REILLY v LIMERICK CORP 1989 ILRM 181

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622 2000/13/4960

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050 2001 IESC 101

ART 26 OF THE CONSTITUTION & HEALTH (AMDT) (NO 2) BILL [2004] 2005 1 IR 10 2005 1 ILRM 401 2005/29/5927 2005 IESC 7

O'DONNELL v SOUTH DUBLIN CO COUNCIL 2011 3 IR 417 2009/44/11163 2007 IEHC 204

SOCIAL WELFARE CONSOLIDATION ACT 2005 S246(7)

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