Neutral Citation:  IEHC 607
THE HIGH COURT
[2013 No. 736 JR]
THE MINISTER FOR JUSTICE AND EQUALITY
JUDGMENT of Mr. Justice Barr delivered on the 4th day of December, 2014
1. This is a post-leave application for an order of certiorari quashing the respondent’s decision of 1st October, 2013, not to process his application for subsidiary protection and for an order of mandamus compelling the respondent to consider 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 29th 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”).
3. On 6th March, 2006, the applicant submitted representations as to why he should be granted temporary permission to remain in the State. By a decision dated 11th May, 2009, the Minister decided to grant the applicant leave to remain in the State for a period of one year. This permission has since been extended on a number of occasions. No reason was given for the initial decision to grant the applicant leave to remain or for the subsequent decisions to renew his permission to remain. The applicant currently has leave to remain in the State until 13th May, 2015.
4. Having learnt of the subsidiary protection regime, the applicant consulted a solicitor and made a subsidiary protection application by letter dated 11th June, 2013. On 27th June, 2013, the respondent refused to consider this application. The reason for this refusal was that, in the respondent’s view, Recital 9 of the Qualification Directive precluded the consideration of a subsidiary protection application from a person with a right to reside in a Member State. Recital 9 of the Directive provides:
5. By letter dated 20th September, 2013, the applicant sought a review of the Minister’s refusal to consider his application. However, the respondent’s position remained unaltered and the applicant was notified of this by letter dated 1st October, 2013. The present proceedings were then instituted and McDermott J. granted leave to apply for judicial review ex-parte on 14th November, 2013.
The present proceedings
7. The applicant submitted that the Minister is not, as a matter of law, permitted to seek to change his reasons for a decision once the decision has been the subject of an application for judicial review. The applicant cites Mullholland v. An Bord Pleanala (No. 2)  1 IR 453; EMI Records (Ireland) Limited v. The Data Protection Commissioner  IESC 1; and R. v. City of Westminster  28 HLR 819, in support of this argument. Applying these authorities, the applicant contends that the Minister’s advancement of new reasons before the court in the present proceedings and the abandonment of the sole original reason given is such as to entitle the applicant to certiorari.
8. The respondent argues that the applicant’s contention that the Minister has substituted new reasons for his refusal in place of the reason originally stated is misconceived. The respondent submits that what has in fact occurred is that the Minister has now recognised that, in accordance with the terms of the Protection Regulations as interpreted in the Supreme Court’s decision in Izevbekhai, she did not have the power to accept the applicant’s subsidiary protection application dated 11th June, 2013. Accordingly, the respondent argues that the precise reasons given by the Minister for not entertaining the application are ultimately not material to the question whether or not she was empowered to accept it.
9. The respondent points out that if the court accepts the Minister’s position that she did not have discretion to accept the application, the court would be acting in vain if it made an order quashing the decision of 27th June, 2013. The respondent states that the inevitable outcome would be that the Minister would refuse to accept the application again on the basis that the application had not been made in accordance with the Protection Regulations and that she did not have discretion to accept it. The respondent submits that in Izevbekhai, the Supreme Court, having found that there was no discretion on the Minister’s part to examine the applicant’s subsidiary protection application, dismissed the applicant’s appeal without considering the merits of the Minister’s decision.
10. As a preliminary matter, therefore, the court must assess whether the Minister has the power to accept and determine a subsidiary protection application from the present applicant in light of his particular circumstances.
Does the Minister have the power to consider the applicant’s application for subsidiary protection?
The European Communities (Eligibility for Protection) Regulations 2006
13. Article 2(e) defines the "persons falling within the scope of this Directive," insofar as it concerns subsidiary protection (see Recital 11) in the following terms:
(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).
(b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.
(2) 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).
18. Section 3 (1) and (2)(f) of the Immigration Act 1999 provide:
(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.
Izevbekhai v. Minister for Justice, Equality and Law Reform  IESC 44
20. The Minister’s decisions were challenged in the High Court. McGovern J. applied the interpretation of Regulation 4(2) as laid down by Feeney J. in N.H. v. Minister for Justice, Equality and Law Reform  IEHC 452,which meant that Regulation 4(2) had conferred a discretion on the Minister to grant subsidiary protection provided that he was satisfied that there were new or altered facts or circumstances that showed a change had taken place in the position of the appellants from that which prevailed at the time the deportation order was made. The Minister had decided there was no such change. McGovern J. was satisfied that the allegedly new material relied upon by the appellants did not show altered circumstances or new facts but merely amounted to an amplification of the case. He therefore held that there was nothing irrational in the Minister’s decision to conclude that there were no grounds upon which he could exercise his discretion under Regulation 4(2).
21. The decision of McGovern J. was appealed to the Supreme Court. On presentation of the appeal it became apparent that the High Court’s decision was predicated on Feeney J.’s interpretation of Regulation 4(2), as set out in his decision in N.H. v. Minister for Justice, Equality and Law Reform  4 IR 452, and which had since been applied in several High Court decisions, but had never been considered by the Supreme Court. Accordingly, the Supreme Court invited the parties to make submissions on the question as to whether Regulation 4(2) does in fact and in law confer on the Minister a discretion to grant subsidiary protection to persons in respect of whom a deportation order had been made and notified before 10th October, 2006, provided that the subject of that deportation order can satisfy the Minister that there are new facts or altered circumstances which significantly change the position of the applicant from that which existed at the time the deportation order was made.
22. Fennelly J. stated that for the purposes of the case before the Supreme Court, only para. (c) of Regulation 3(1), which relates to the proposal to make a deportation order, was relevant. Regulation 3(1)(c) provides:
(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.
56. As stated earlier in this judgment, the Minister made the three deportation orders in respect of the appellants on 23rd November 2005, which was prior to the coming into operation of the Regulations. He gave notice of these orders on 29th November 2006. Section 3(3) of the Immigration Act, 1999 obliges the Minister to give notice in writing of a proposal to make a deportation order. The appellants were properly notified. Regulation 4(1)(a) of the Regulations applies only to a notification of such a proposal. The wording of that provision is capable of applying only to such notifications given after the coming into operation of the Regulations, i.e. after 10th October 2006.
57. Section 3(2) (f) of the Act of 1999 applies to "a person whose application for asylum has been refused by the Minister." Regulation 4(2) expresses a negative proposition: it specifies what the Minister is not obliged to do. It contains no words purporting to confer any positive power or discretion on the Minister. It is the centre of the issue under consideration.
28. The applicant has sought to argue that the Qualification Directive does not impose any time limit for applications and that eligible persons may still be eligible if they applied 2 weeks or 2 years after a proposal to deport was issued. In support of this contention, the applicants rely on the decision of the Court of Justice in Nawaz v. Minister for Justice (Case 604-12). At para. 38 the Court of Justice stated:
39. However, Directive 2005/85 applies to applications for subsidiary protection only where a Member State establishes a single procedure under which an application is examined by reference to both forms of international protection, namely asylum and subsidiary protection (Case C-277/11 M. EU:C:2012:744, paragraph 79).
31. The applicant submits that the Minister’s failure in the years following the 10th October, 2006, to inform the applicant of his entitlement to make an application for subsidiary protection, which the applicant says he was obliged to do under section 3(3) of the Immigration Act, 1999, as imposed by Regulation 4 of the European Communities (Eligibility for Protection) Regulations 2006, unlawfully denied the applicant the opportunity to make such an application to the respondent; and that the respondent is thereby estopped from alleging that the applicant is out of time to make the application.
32. However, this submission appears to be misconceived: the applicant received a proposal to deport in February 2006, which was before the coming into force of the Regulations. It is clear from the judgment of Fennelly J. in Izevbekhai that 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 consequently not eligible to apply for subsidiary protection.
33. The classes of persons to whom the Regulations apply are strictly limited. The Minister has no discretion to accept applications from persons who are not specified as eligible in the terms of the Regulations themselves. Fennelly J. stated that Regulation 3 limits the scope of the Regulations to cases described in Regulation 3(1)(c) where “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” is communicated after 10th October, 2006.
34. I am satisfied that because the applicant in this case received his notification of intention to deport pursuant to s. 3(2)(f) of the Immigration Act 1999, as amended, prior to the coming into force of the Regulations, he is not a person to whom the Regulations apply and, consequently, is not eligible to apply for subsidiary protection. The Minister, moreover, did not have the power to accept the applicant’s application since he is not an eligible person under the Regulations.
35. The Court must therefore answer the central question posed in these proceedings in the negative: the Minister did not have the power to accept an application for subsidiary protection from this applicant since he was furnished with a notification of intention to deport by letter dated 13th February, 2006, which was prior to the coming into force of the Regulations on 10th October, 2006. It is clear from the Supreme Court’s decision in Izevbekhai that the Minister has no discretion to accept subsidiary protection applications from persons such as this applicant to whom the Regulations do not apply and that such persons are not entitled to apply for subsidiary protection.
Did the Minister change reasons?
37. The respondent, however, is no longer standing over the original reason given for rejecting the applicant’s application and has instead put forward a different explanation as to why the applicant’s application had to be rejected. This explanation is that in accordance with the Supreme Court’s interpretation of the Protection Regulations as set out in Izevbekhai, the Minister had no discretion to accept an application for subsidiary protection from the applicant who, in turn, had no right to apply for subsidiary protection.
38. The respondent submits that the applicant has sought to characterise this as the substitution of new reasons for the decision made by the Minister in place of the original reasons but that this is not in fact the case. The Minister’s position is that, in accordance with the terms of the Protection Regulations and the decision in Izevbekhai, she did not have the power to accept the purported application of the 11th June, 2013. Accordingly, the respondent submits that the precise reasons given by the Minister for not entertaining the application are ultimately not material to the question whether or not she was empowered to accept it.
39. The applicant maintains that it is not open to the Minister, as a matter of law, to change the reasons for her decision and a number of authorities were cited in support of this contention.
40. What happened here was that the Minister realised - albeit belatedly - that she lacked jurisdiction to accept and consider a subsidiary protection from this applicant in the first place, since the Protection Regulations do not permit this applicant to make an application, and nor do they confer on the Minister a discretion to accept such an application.
41. The Minister in the Statement of Opposition expressly stated that she does not now stand over the reason stated in the letter of 27th June, 2013, based on Recital 9 of the Qualification Directive. I will permit the respondent to advance the argument that she did not have jurisdiction to entertain an application on behalf of the applicant for subsidiary protection. However, this is a matter which may be reflected in the appropriate costs order at the conclusion of the proceedings.
Should the court grant certiorari?
43. However, it seems to me that it would be futile to quash the Minister’s decision in the circumstances of the present 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 Protection Regulations, as interpreted by the Supreme Court in Izevbekhai, preclude the making of such an order: the court cannot order the respondent to do something which she does not, in law, have the power to do.
44. The respondents rely on The State (Polymark (Ireland) Ltd) v. The Labour Court and The Irish Transport and General Workers’ Union  ILRM 357 in support of their submission that the court will refuse to grant certiorari where to do so would be futile. In the course of his judgment, at p. 362 of the report, Blayney J. quoted with approval the following passage from the judgment of O’Higgins CJ in The State (Abenglen) v. Dublin Corporation  IR 381 at p. 393:
My principal reason is that the granting of an order of certiorari is not necessary for the protection of the prosecutor’s legal rights in the sense that it could not in any way protect them. If the determination of the Labour Court is quashed, this will have no effect on the equal pay officer’s recommendation which I have found to have been validly made. Her recommendation will remain binding on the prosecutor. In these circumstances the quashing of the Labour Court’s determination would be pointless. It would in no way alter the position which has resulted from my finding in regard to the first ground, namely, that there was a valid recommendation made by the equal pay officer which is binding on the prosecutor.
As well as being pointless, an absolute order would, for the reason I have already given, be of no benefit to the prosecutor, and this is a relevant consideration to be taken into account in exercising my discretion. This was the ground upon which Walsh J. based his refusal to make an order of certiorari in the Abenglen case. He said in his judgment:
If I am correct in this, then an order of certiorari quashing the decision made by the respondents would be of no benefit to Abenglen. While the Court could make such an order in the present case, the Court in its discretion could refuse to do so where that would not confer any benefit upon Abenglen. (at p. 397).
47. This application for judicial review must be rejected and the reliefs sought are refused.