W.T. v Minister for Justice and Equality

JudgeMr. Justice Richard Humphreys
Judgment Date15 February 2016
Neutral Citation[2016] IEHC 108
CourtHigh Court
Docket Number[2011 No. 1220 J.R.]
Date15 February 2016

[2016] IEHC 108

Humphreys J.

[2011 No. 1220 J.R.]



Asylum, Immigration & Nationality – Certiorari – Directive 2004/83/EC – Serious harm – Deportation – Revocation of deportation order – European Communities (Eligibility for Protection) Regulations 2006 – Amendment of pleadings

Facts: The applicant had originally sought an order of certiorari for quashing the decision of the respondent refusing to grant subsidiary protection to the applicant; however, given the fact that the applicant had acquired the status of family member of a recognised refugee, owing to which the deportation of the application was revoked, the applicant had now applied for an amendment of the pleadings. The applicant had originally challenged the deportation order along with certain definitions appearing in the European Communities (Eligibility for Protection) Regulations 2006.

Mr. Justice Richard Humphreys granted leave and thus an order of certiorari for quashing the decision of the respondent and directed the respondent to reconsider and decide on the applicant's application for subsidiary protection. The Court held that in order to decide whether an amendment of pleadings should be allowed, the Court must determine that the case was arguable and no irreparable prejudice was caused to the opposite party. The Court held that the right of access to the Court was an important right and that right should not be vindicated unless it was shown that no possible benefit would accrue with the continuance of the proceedings. The Court observed that the receipt of subsidiary protection was an independent and superior right than the status conferred by virtue of being a family member of a recognised refugee. The Court observed that it was in the interest of the applicant that the present proceedings should be maintained. The Court held that the definition of the term ‘serious harm’ as appearing under reg. 2(1) the 2006 Regulations and the definition of ‘protection against persecution or serious harm’ were ineffective as they were not used in the substantive provision of the said Regulations. The Court observed that the statement by the respondent that the state protection to the applicant would be forthcoming from NGOs was fundamentally flawed as the NGOs were not part of the definition ‘actors of protection’ under art. 7 (1) of the Directive 2004/83/EC. The Court held that since there was wrong application of the said Directive in the present case and findings in relation to the serious harm and state protection not being severable as the latter is the part of the test of former, the entire decision of the respondent was liable to be quashed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2016

The applicant was born in Cameroon in 1992. He claims to have been the victim of a local custom regarding tribal succession. He was reluctant to accept a traditional leadership role and claims he was put at risk from family members. His general credibility appears to have been accepted by the Minister.


On 22nd September, 2009, his mother made a complaint to police regarding the threats emanating from family members. However, later on the same day she withdrew the complaint stating that she had been promised it would be dealt with within the family.


On 23rd October, 2009, the applicant came to Ireland as an unaccompanied minor.


He applied for asylum, and his application was duly refused by the Refugee Applications Commissioner and, on appeal by the Refugee Appeals Tribunal. The tribunal, on appeal, considered that he could internally relocate within Cameroon. The applicant turned 18 in 2010.


He applied for subsidiary protection, but was refused that status by the Minister on 30th November, 2011. The Minister also made a deportation order against him.


The present proceedings were filed on 22nd December, 2011, only slightly out of time having regard to the 14-day time limit in force at that point in respect of such applications.


On 11th July, 2013, the deportation order was revoked by virtue of the applicant's acquisition of the status of family member of a recognised refugee.

Particularisation and amendment of Pleadings

At an early stage in the hearing, Mr. David Conlan Smyth, S.C. (who appeared with Ms. Catherine Duggan, B.L.) for the respondent complained that the statement of grounds was inadequate insofar as it related to an allegation that ‘ serious harm’ had not been properly analysed. It was agreed that an amendment of the pleadings to particularise this claim would be allowed on consent.


However, in the immediate aftermath of initially having reserved judgment in this case, on a further review of the papers, I had a preliminary concern that it was possible that a number of other submissions made at the hearing had not been adequately set out in the pleadings, and indeed that other issues relating to the meaning of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006), which were adverted to in the respondent's written submissions, had not been adequately developed at the hearing. Of course such a preliminary concern was in the context that I had not at that point made any, still less any final, decisions about what points needed to be addressed or how. I therefore drew the attention of the parties to these possible issues and to whether or how they might be accommodated in the statement of grounds, subject to submissions.


In this regard, I would observe that courts have, on occasion, taken very significant points of their own motion. For example, in T.D. v. Minister for Justice, Equality and Law Reform [2014] IESC 29, the Supreme Court noted without apparent disapproval (see judgment of Fennelly J. at para. 2) that Hogan J. had, of his own motion, taken a point as to the validity of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 in terms of EU law.


In J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473, Hogan J. took an important point of his own motion after having reserved judgment, and reconvened the hearing to invite further submissions on it.


Holding judicial office has one advantage over the role of advocate, namely the capacity to do something about the esprit d'escalier that potentially affects all participants in the process of a hearing; what O'Donnell J. refers to as ‘ the principle of delayed eloquence, which is the constant and unforgiving companion of any conscientious advocate’ ( The People (D.P.P.) v. Rattigan [2013] 2 I.R. 221 at 245). If, following the reserving of judgment, a judge, applying further thought and contemplation to the matters argued, comes to the view that some issue in the case was not, on reflection, fully pleaded or developed, the court is not without options. Further judicial thought and reflection before a final decision should be encouraged rather than the opposite (see recent comments of the U.S. Supreme Court in White v. Wheeler (2015) 577 U.S. slip op. at p. 8, per curiam)


Of course a court can, and often does, leave such points to one side and focus solely on only those arguments expressly made at the hearing which squarely come within the four walls of the pleadings. It can alternatively, as Hogan J. did in J.K. reconvene the hearing and take the point of its own motion. Or it can draw the parties' attention to the matter and leave it to the parties to take the point or not, an approach for which I expressed a preference in S.O. v. Minister for Justice and Equality [2015] IEHC 821. That is the approach I endeavoured to take in this case.


Following the foregoing developments, Mr. Michael Lynn, S.C. (who appeared with Ms. Anne Fitzpatrick, B.L.) for the applicant, sought a number of amendments to the pleadings. While Mr. Conlan Smyth objected to the lateness of any amendment, and to the fact that the statement of grounds had gone through four versions, the original statement and draft amended versions dated 1st, 7th and 14th December, 2015, ultimately, such objections are not persuasive. A court in such circumstances is not absolutely compelled to freeze the case as of the moment judgment is reserved. As long as the court retains seisin of the matter, further matters can be brought to the attention of the parties, or indeed, as sometimes happens, the parties may spontaneously wish to bring additional matters to the attention of the court. In The People (D.P.P.) v. Murphy [2015] IECA 300 (Court of Appeal, Birmingham J, 6 November 2015), it was recently held that the Special Criminal Court should have halted its deliberations having retired to consider its verdict, given the handing down of a judgment by the Supreme Court in the course of those deliberations, and its verdict was set aside on appeal as a result of failing to do so.


The fact that the present application is a leave application telescoped with the substantive hearing is another reason (if such be required) for flexibility in terms of debate between the court and the parties as to the appropriate wording of the grounds. In the context of a normal leave application, such debate is relatively routine and often results in a slimming down of the grounds originally advanced.


Mr. Conlan Smyth relied on the decision of McDermott J. in S.J. v. Refugee Applications Commissioner [2014] IEHC 108, in which the court was not willing to permit an amendment which cut across the agreement by the respondents to agree to a telescoped hearing, thereby facilitating the court and the applicant. Mr. Conlan Smyth fairly acknowledges that S.J. does not discuss the decisions in Keegan v. Garda Siochána Ombudsman Commission [2012] 2 I.R. 580 and O'Neill v. Applebe [2014] IESC 31 (which I dealt with at length in ...

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