A.E.A. v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] IEHC 606 |
| Court | High Court |
| Date | 04 December 2014 |
[2014] IEHC 606
THE HIGH COURT
AND
IMMIGRATION ACT 1999 S3(3)(B)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGULATIONS 2006 SI 518/2006
EEC DIR 2004/83
IMMIGRATION ACT 1999 S3(3)(B)
EEC DIR 2004/83 RECITAL 9
IZEVBEKHAI v MIN FOR JUSTICE 2011 1 ILRM 398 2010/23/5784 2010 IESC 44
MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306
SHELL E & P IRL LTD v MCGRATH & ORS 2013 1 IR 247 2013/47/13408 2013 IESC 1
R v WESTMINSTER CITY COUNCIL, EX PARTE ERMAKOV 1996 2 AER 302 1996 2 FCR 208 1996 28 HLR 819
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 1(2)
EEC DIR 2004/83 ART 2(E)
EEC DIR 2004/83 RECITAL 11
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 3
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 4
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 3(1)
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 3(1)(C)
IMMIGRATION ACT 1999 S3(3)
IMMIGRATION ACT 1999 S3(2)(F)
IMMIGRATION ACT 1999 S3(1)
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 4(2)
H (N) & D (T) v MIN FOR JUSTICE 2008 4 IR 452 2007/27/5589 2007 IEHC 277
EUROPEAN COMMUNITIES (ELIGIBILIY FOR PROTECTION) REGS SI 518/2006 REG 4(1)
N v MIN FOR JUSTICE & ORS 2014 1 WLR 3371 2014 AER (D) 100 (MAY)
POLYMARK (IRL) LTD, STATE v LABOUR COURT & IRISH TRANSPORT & GENERAL WORKERS UNION 1987 ILRM 357 1986/8/1584
ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1
Immigration and asylum – Order of certiorari – Subsidiary protection – Applicant seeking subsidiary protection – Whether respondent”s advancement of new reasons entitled the applicant to certiorari
Facts: The applicant is a Somali national. She arrived in Ireland and applied for asylum in 2005. The Office of the Refugee Applications Commissioner recommended that her claim be refused, and this recommendation was affirmed by the Refugee Appeals Tribunal in its decision in March, 2006. In April, 2006, the Minister refused to grant the applicant a declaration of refugee status and notified the applicant of his proposal to deport her, prior to the entry into force of the European Communities (Eligibility for Protection) Regulations 2006 (the Protection Regulations) in October, 2006. The applicant made an application to have the RAT”s decision quashed by way of judicial review which was dismissed in 2008. In September, 2006, the Refugee Legal Service submitted representations to the respondent Minister on the applicant”s behalf pursuant to s. 3(3)(b) of the Immigration Act 1999 requesting leave to remain in the State. In 2009, the Minister granted the applicant leave to remain for a year and made subsequent renewals. In 2013, the applicant applied to the Minister for subsidiary protection. The Minister rejected the application on the grounds that Recital 9 of Council Directive 2004/83/EC (the Qualification Directive) precluded persons who had a right of residency in a Member State from making an application for subsidiary protection. The applicant instituted proceedings before the High Court challenging the Minister”s decision, making a post-leave application by way of judicial review for an order of certiorari quashing the decision of the Minister, and for an order of mandamus compelling the Minister to process and determine the applicant”s application pursuant to the Protection Regulations. The Minister stated that, in accordance with the interpretation of the Protection Regulations by Izevbekhai v Minister for Justice, Equality and Law Reform [2010] IESC 44, she had no discretion to accept an application for subsidiary protection since the applicant had no right to apply for it under the terms of the Regulations. The applicant contended that the Minister”s advancement of new reasons and the abandonment of the original reason given, was such as to entitle the applicant to certiorari. The respondent argued that the reasons given by the Minister for not entertaining the application are not material to the question as to whether or not she was empowered to accept it. The respondent argued that the Minister does not have the power to consider an application for subsidiary protection from an applicant whose asylum application was rejected prior to the coming into force of the Protection Regulations.
Held by Barr J that, having considered the Protection Regulations and following Izevbekhai, persons who received a proposal to deport before the coming into force of the Regulations are not covered by the terms of the Regulations and are not eligible to apply for subsidiary protection. Barr J held that by accepting and considering the applicant”s subsidiary protection application, and then purporting to reject it on the basis of Recital 9, the Minister was acting in excess of jurisdiction. Her decision was therefore held to be void and of no effect. In such circumstances, the Court would ordinarily grant certiorari, however Barr J held that it would be futile to quash the Minister”s decision in the circumstances of the case because it would be of no benefit to the applicant; the court cannot grant an order of mandamus compelling the respondent to accept and consider the applicant”s application because the Regulations, as interpreted by the Supreme Court in Izevbekhai, preclude the making of such an order. Barr J held that the court cannot order the respondent to do something which he does not, in law, have the power to do. Having held that the Protection Regulations preclude the Minister from accepting a subsidiary protection application from the applicant, and do not entitle the applicant to apply for subsidiary protection, Barr J held that quashing the Minister”s original decision would be of no benefit to the applicant and that the court ought to refuse certiorari.
Barr J held that the application for judicial review must be rejected and the reliefs sought refused.
Application refused.
1. This is a post-leave application by way of judicial review for an order of certiorari quashing the decision of the Minister to refuse to process and determine the applicant's application for subsidiary protection, and for an order of mandamuscompelling the Minister to process and determine the applicant's application for subsidiary protection pursuant to the provisions of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006) ("the Protection Regulations"), which transposed Council Directive 2004/83/EC of 29 th April, 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive").
2. The applicant in this case is a Somali national born on 10 th July, 1970. She arrived in Ireland and applied for asylum on 7 th July, 2005. The Office of the Refugee Applications Commissioner recommended that her claim be refused, and this recommendation was affirmed by the Refugee Appeals Tribunal in its decision dated 14 th March, 2006. On 7 th April, 2006, the Minister refused to grant the applicant a declaration of refugee status and by the same letter notified the applicant of his proposal to deport her. This was before the entry into force of the Protection Regulations on 10 th October, 2006.
3. The applicant sought to have the RAT's decision quashed by way of judicial review but this application was unsuccessful and was dismissed by order dated 25 th July, 2008. On 28 th September, 2006, the Refugee Legal Service submitted representations to the Minister on the applicant's behalf pursuant to s. 3(3)(b) of the Immigration Act 1999, as amended, requesting leave to remain in the State. This application was supplemented by further submissions on 7 th November, 2008, after the judicial review application had failed.
4. By decision dated 5 th May, 2009, the Minister decided to grant the applicant leave to remain for a year. This permission has been renewed on subsequent occasions. The respondent did not provide reasons for his decision to grant the applicant leave to remain, or for the subsequent renewals.
5. By letter dated 10 th July, 2013, the applicant submitted a subsidiary protection application to the Minister. She stated that she has five children who remain in Ethiopia with their grandmother and stated that she wished to be reunited with them.
6. The Minister rejected the applicant's application on the grounds that Recital 9 of the Qualification Directive precluded persons who had a right of residency in a Member State from making an application for subsidiary protection. The Minister quoted Recital 9, which states:-
Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive.
7. The applicant instituted these proceedings challenging the Minister's decision, and was granted leave to apply for judicial review by order of McDermott J. on 14 thOctober, 2013.
8. The Minister does not now stand over the reason given for not accepting the applicant's subsidiary protection application submitted on 10 th July, 2013. Instead, the Minister now adopts the position that, in accordance with the interpretation of the Protection Regulations by the Supreme Court in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010]...
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