High Court of Ireland Decisions

Judgment Title: N. -v- MJELR & Ors

Neutral Citation: [2010] IEHC 489


High Court Record Number: 2009 1019 JR

Date of Delivery: 12/15/2010

Court: High Court

1. EU Council Directive 2004/83/EC provides for applications for subsidiary protection for persons who are not entitled to refugee status but who are nevertheless at risk of serious harm. The State implemented the Qualification Directive, as it is known, by S.I. 518 of 2006. These regulations provide that subsidiary protection may be sought by a person whose application for asylum has been refused. They do not allow for an independent application so a person has to apply for asylum before seeking subsidiary protection.

2. The applicant wants to apply for subsidiary protection without going through the asylum process. He accepts that he is not a refugee because he does not fear persecution for a Convention reason but he claims that he does qualify for subsidiary protection. If he is obliged to claim refugee status before seeking what he believes he is really entitled to, he will be making a false claim and will or may suffer prejudice. The applicant objects to this.

3. The applicant's case is that he should not have to go through this charade. He claims that the Irish regulations are in conflict with the EU directive. He obtained leave to bring judicial review proceedings by order of this Court in the following terms:

1. The first named respondent has failed to consider the exercise of his discretion pursuant to Regulation 4(2) of the EC (Eligibility for Protection) Regulations, 2006 (S.I. 518 of 2006) to accept the applicant’s application notwithstanding that the applicant is not a failed asylum seeker;

2. Regulation 3(1) and Regulation 4(2) of the EC (Eligibility for Protection) Regulations, 2006 (S.I. 518 of 2006) are unlawful and ultra vires the provisions of the European Communities Act, 1972 (No. 27 of 1972) and Council Directive 2004/38/EC insofar as and to the extent that they provide that the first named respondent is entitled to refuse to consider the application for subsidiary protection of a person who is not a failed asylum seeker;

3. The applicant is not entitled to work unless his application for subsidiary protection is successfully determined. The applicant will sustain loss and damage waiting for a futile application for asylum to be refused should he be obliged to make such an application.

Facts
5. The applicant is a national of Pakistan. He entered the State pursuant to a student visa in 2003. He married an Irish national in 2004, and was granted permission to remain in the State until 2005. Following the break-down of his marriage, this permission was not renewed. On 23 February 2006, the applicant was informed that the first respondent proposed to deport him. The applicant did not make a claim for asylum at any time, however, on 10 July 2009 he applied for subsidiary protection under the European Communities (Eligibility for Protection) Regulations, 2006. On 27 July 2009, the first respondent informed the applicant that only a person who has been refused refugee status can apply for subsidiary protection.

E.C. (Eligibility for Protection) Regulations 2006
6. The purpose of the EC (Eligibility for Protection) Regulations, SI 518 of 2006 is to give effect to the Qualification Directive. The relevant regulations are as follows.

Regulation 2 defines a person eligible for subsidiary protection as one

(a) who is not a national of a Member State,

(b) who does not qualify as a refugee,

(c) in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to this or her country of origin, would face a real risk of suffering harm as defined in these regulations.

Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as “protection decisions”) made on or after the coming into operation of these Regulations:

(a) a recommendation under section 13(1) of the 1996 Act;

(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

(c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection 2(f) of that section relates;

(d) a determination by the Minister under Regulation 4(4) or 4(5).

The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).

Section 3 of the Immigration Act, 1999, referred to in Regulation 4(2), states, intera alia:

(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

(2) An order under subsection (1) may be made in respect of –

…


(f) a person whose application for asylum has been refused by the Minister

8. The applicant argued that the Qualification Directive does not limit subsidiary protection to failed asylum seekers. In support of this, his counsel Mr O’Reilly SC cited Recitals 24, 25 and 26 of the Directive. Recital 24 states:

…Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.

It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.

Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.

10. Finally, the applicant cited European Court of Justice Case C-465/07 Elgafaji v Staatssecretarias Van Justitie [2009] ECR I – 921, for the proposition that the criteria for subsidiary protection are wider than those that apply to the grant of refugee status. The applicant submitted that as the criteria differ, an application for subsidiary protection can exist separately and apart from an application for refugee status.

11. The respondent submitted that the Regulations conform to the Directive and the applicant is not entitled to apply for subsidiary protection unless, intera alia, he has first failed to qualify as a refugee. In support of this argument, the respondent relied on Article 2(e) of the Directive, which states that:

[a] person eligible for subsidiary protection» means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country

12. Finally, the respondent cited Izevbekhai v Minister for Justice Equality and Law Reform (Unreported, Supreme Court, 9 July 2010) where Fennelly J. stated that Regulation 4(2) of the 2006 Regulations has the effect that “the Minister is not obliged to consider an application for subsidiary protection from any person other than one to whom that provision applies.” It was submitted therefore, that the respondent has no discretion to accept an application from the applicant in circumstances where he is not a person whose application for asylum has been refused by the Minister.

Analysis
13. The debate in this case is essentially a theoretical one. The applicant is free to apply for subsidiary protection; the only question is whether he makes that in the first instance or whether he has to go through the process of applying for asylum and being refused before he makes his case for subsidiary protection. Whichever interpretation of the debate is correct, the applicant is in a position to make a case for subsidiary protection. In these circumstances, it is questionable whether it is legitimate to use judicial review for the purpose of establishing who is correct in an exegetical debate about the E.U. Directive.

14. As to the issue in contention, it seems to me that, while there is something to be said for each side, the respondents’ argument is more correct. Both sides are in agreement that there is a choice of the mode of implementation of the Directive. If the option chosen by the State is among the legitimate ways of implementing it, the applicant cannot succeed. He would have to show that the choice made by the State was not permitted by the Directive or that the Regulations failed to do something that the Directive mandated. If the furthest the applicant can put the case is that the Directive permits a different way of doing it, that is not enough. Indeed, it is not sufficient for him to show that the Directive envisages a different way of doing it. Unless he establishes that the mode adopted by the Regulations is not in accordance with the Directive, either by doing something in a way that the Directive does not permit or by failing to do something that the Directive requires, he cannot succeed. On this issue, my view is that the Regulations have adopted a mode of implementing the Directive that is legitimately within its terms and consistent with its meaning. It may not be the only way but that does not invalidate it. The fact that the Commission’s original proposal for an independent application was not adopted reinforces this interpretation.

15. Whatever view one takes about the debate, the worst prejudice that can be claimed by the applicant to arise out of the alleged misapplication of the Directive by the State is that he has got to apply first for asylum before moving on to his real case, as he says, which is subsidiary protection. He says that this means he is making a false application or an untruthful application or even a fraudulent application. I think this apprehension is unfounded. There is nothing to stop him accompanying his application with a letter from his solicitor setting out the true position as he maintains; there is nothing to stop him giving evidence in accordance with the truth as he knows it; there is nothing to stop him making it quite clear that he is proceeding in this way because it is the required and only means by which he can make his real case.

16. My conclusion accordingly is that the applicant is not entitled to the orders sought by way of judicial review.