High Court of Ireland Decisions
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Cite as: [2014] IEHC 618
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Judgment
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Neutral Citation: [2014] IEHC 618 THE HIGH COURT JUDICIAL REVIEW [2014 No. 31 J.R.] BETWEEN B. A. AND R. A. APPLICANTS AND THE MINISTER FOR JUSTICE AND EQUALITY AND THE REFUGEE APPLICATIONS COMMISSIONER RESPONDENTS JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 12th day of December 2014 1. These proceedings challenge the validity of S.I. No. 426 of 2013, The European Union (Subsidiary Protection) Regulations 2013 (the “2013 Regulations”). The applicants are a mother and daughter. The mother is a national of Ghana who sought asylum in Ireland in August 2007. Her daughter was born in Ireland on 8th October 2007 and this child’s application for asylum was considered as part of her mother’s claim. 2. The basis of the claim for international protection (asylum and/or subsidiary protection) is important in these proceedings. What follows is the mother’s account of the persecution she fears and the circumstances of her travel to Ireland. The Applicants’ Account: 4. The applicants sought subsidiary protection in 2009 pursuant to the EC (Eligibility for Protection) Regulations 2006. With the adoption of new rules for the determination of subsidiary protection applications on 18th November 2013, the applicants’ solicitors made complaint that S.I. No. 426 of 2013 is invalid. 5. The applicants’ solicitors requested that their clients’ applications for subsidiary protection proceed without prejudice to their entitlement to claim that the 2013 Regulations were invalid. Because there was either no reply or a neutral reply to this request, the applicants instituted these proceedings in advance of the determination of their claim. Relevant Legislative Provisions: Recital 6:
“The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.”
2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection. 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin. . . (b) the relevant statements and documentation presented by the applicant… (c) the individual position and personal circumstances of the applicant. . . (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection . . . (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship."
Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.”
1. Protection can be provided by: (a) the State; or (b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State. 2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.”
(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” 9. The relevant provisions of the 2013 Regulations are as follows. The Preamble states that the Minister for Justice and Equality:
(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 his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” ‘Serious harm’ means: “(a) death penalty or execution, (b) torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict. ‘torture’ has the meaning it has in section 1 (as amended by section 186 of the Criminal Justice Act 2006) of the Criminal Justice (United Nations Convention Against Torture) Act 2000.”
… shall be— (i) made within the period specified in the notice referred to in subparagraph (a), and (ii) addressed to the Commissioner and made in writing, in the form set out in Schedule 1 or a form to the like effect.”
(a) a state, (b) parties or organisations controlling a state or a substantial part of the territory of that state, and (c) non-state actors, if it can be demonstrated that the actors referred to in subparagraphs (a) and (b), including international organisations, are unable or unwilling to provide protection against serious harm.” 14. Section 1(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000 as amended by s. 186 of the Criminal Justice Act 2006, provides, in relevant part that:
(a) for such purposes as-
(ii) punishing that person for an act which the person concerned or a third person has committed or is suspected of having committed, or (iii) intimidating or coercing that person or a third person. 15. The applicants maintained two grounds of challenge to the 2013 Regulations. Firstly, it was contended that the 2013 Regulations are ultra vires the European Communities Act 1972 (the “1972 Act”) because vesting the decision making power in respect of subsidiary protection applications in the Refugee Applications Commissioner (the second named respondent) cannot be achieved using a Statutory Instrument made under s. 3 of the 1972 Act. Secondly, it is claimed that the definition of ‘torture’ provided in the 2013 Regulations is an unlawful transposition of the definition contained in the Qualification Directive. It is proposed to deal with each argument in turn. The Ultra Vires Argument:
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by the institutions thereof, or by bodies competent under the Treaties establishing the Communities from having the force of law in the State.”
(a) the treaties governing the European Union; (b) Acts adopted by the institutions of the European Union (other than Acts to which the first paragraph of Article 275 of the Treaty on the Functioning of the European Union applies); (c) Acts adopted by the institutions of the European Communities in force immediately before the entry into force of the Lisbon Treaty; and (d) Acts adopted by bodies competent under those Treaties (other than Acts to which the first paragraph of the said Article 275 applies).”
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).” 21. Counsel states that the Minister in exercising powers under s. 3(2) of the 1972 Act must exercise such power constitutionally and refers the court to the cases of East Donegal Co-Operative v. Attorney General [1970] 1 I.R. 617, Laurentiu v. Minister for Justice [1999] 4 IR 26 and Maher v. Minister for Agriculture [2001] 1 I.R. 139 in this regard. 22. It was submitted that the transfer of powers from the Minister to ORAC and the RAT is wholly independent of the principles and policies contained in the Qualification Directive, and further that such a transfer manifestly could not have been achieved by Statutory Instrument as a matter of Irish public law. The consequence, it is submitted, is that the purported transfer by S.I. is ultra vires the powers conferred on the Minister by s. 3 of the 1972 Act. Further, it is asserted that it constitutes an impermissible exercise of executive power contrary to Article 28.2 of the Constitution. In each case, counsel for the applicants submits that the measure is vitiated by the absence of Oireachtas authorisation. Counsel relies on the authorities of Sulaimon v. Minister for Justice and Equality [2012] IESC 63, Bode (A Minor) v. Minister for Justice, Equality and Law Reform [2007] IESC 62, Laurentiu v. Minister for Justice [1999] 4 IR 26 and Dunne v. Donohue [2002] 2 IR 533 for this proposition. 23. Finally, the applicants believe that even if the power has been exercised constitutionally, it is submitted that the transfer of the decision making power from the Minister to ORAC and the RAT represents a change in the law of such significance and import and is so removed from the purposes of the Qualification Directive, that it cannot be incidental, consequential and supplementary within the meaning of section 3(2) of the 1972. Reliance is placed on the judgment of Cooke J. in M.S.T. v. Minister for Justice [2009] IEHC 529 in this regard. 24. In short, the complaints the applicants raise with regard to the ultra vires claim are:
(b) That the Minister had no lawful power pursuant to s. 3 of the 1972 Act to make the 2013 Regulations; (c) That the Minister had no lawful power to make the 2013 Regulations in order to give effect to the Qualifications Directive; (d) That any increase or alteration of the powers of ORAC and / or the RAT must be made by an Act of the Oireachtas;
29. Counsel examines the cases of Meagher and Maher and expressly refers to the dicta of Denham J. in the latter case where she concluded:
31. With regard to the applicants’ contention that the amendments to the roles of both the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal could only be made by way of primary legislation, the respondent submits that the 2013 Regulations are made in compliance with and pursuant to the provisions of the European Communities Act 1972. In light of this, it is submitted that the Minister may provide that the functions set out in the Refugee Act 1996 shall be conferred on an appropriate body and be exercisable for the purposes of the 2013 Regulations. It is submitted that the Minister has an express power pursuant to s. 3(2) of the 1972 Act to include in the 2013 Regulations such incidental, supplementary and consequential provisions as appear to be necessary for the purposes of the regulations, including provisions repealing, amending or applying, with or without modification, other statutory provisions in the State. In this regard it is submitted that Articles 27 and 28 of the 2013 Regulations are required by the Minister to create a revised scheme for the determination of subsidiary protection applications in the State under the Qualification Directive and therefore are incidental, supplementary and consequential provisions of the regulations. Findings: 33. Article 288 of the Treaty on the Functioning of the European Union says that Directives are binding “as to the result to be achieved”. In order to figure out what obligations Ireland must meet under the Qualifications Directive, it is useful to ask: what is the result to be achieved by the Qualification Directive? This is another way of asking what the object of the Directive is. In my view, this is indistinguishable from asking what the policy of the Directive is. 34. One of the purposes of the Qualification Directive was to establish a form of protection complementary to asylum known as subsidiary protection and to ensure that this form of protection would be available in each of the Member States to third country nationals in fear of serious harm. Ireland had to ensure that it established mechanisms whereby such protection could be sought and granted. The provisions of Recital 6 are recalled which provide:
39. In Meagher v. Minister for Agriculture [1994] 1 I.R. 329, it was found that it would have been impossible for the State to meet the obligations of the Directive at issue in those proceedings without creating a criminal offence. The Supreme Court was satisfied that the period granted to permit investigation and prosecution came within s. 3(2) of the 1972 Act and was incidental, supplementary or consequential in relation to the obligation in the Directive. Here, in my opinion, it would similarly be impossible for the State to meet the binding effect which the Qualification Directive is designed to have unless Ireland identified a person empowered to receive and determine an application for international protection and to assess it in accordance with the rules set out in Article 4(3) thereof. An inescapable obligation of the Directive is the vesting of the function required to be carried out under Article 4 in an identified agency, office or person. 40. In the cases of both Meagher and Maher the Supreme Court makes reference to the test laid down by O’Higgins C.J. in Cityview Press v. An Comhairle Oiliúna [1980] I.R. 381:
If the regulations contained material exceeding the policies and principles of the directives then they are not authorised by the directives and would not be valid under s. 3 unless the material was incidental, supplementary or consequential. In those circumstances if they were not incidental, supplementary or consequential the regulations would be an exercise of legislative power by an authority not so permitted under the Constitution. If it be within the permitted limits, if the policy is laid down in the directive and details only are filled in or completed by the regulations, there is no unauthorised delegation of legislative power.” 43. Mr. Dillon Malone S.C. says that even if the identification of the decision maker was an inescapable obligation in the Directive, a transfer of functions to the Commissioner from the originally selected Minister for Justice, as decision maker, could not be described as an obligation necessitated by the Directive. If he is right about this, then the State could not, via secondary legislation, transfer the function to the Commissioner and the Regulations must fall. My view is that the State, being obliged to establish a facility for the assessment of applications for international protection, is entitled to rely on that obligation to vest the decision making role in whomsoever they please. Should it be decided to vest the function in some new body or agency, the transfer of such function to the new body is a lawful expression of the obligation to vest the function in an identifiable person or agency. That it is transferred does not reduce the nature of what the State is seeking to achieve by affecting the transfer - to ensure that there exists a person to whom application for international protection can be made. 44. If this conclusion is in error, and if it be the law that the act of transferring the function from the Minister to the Commissioner is not an expression of an EU law obligation, the respondent says that such transfer is covered by the provisions of s. 3(2) of the 1972 Act. I have no hesitation in supporting this proposition. Where European Union law obliges the State to identify a decision maker for subsidiary protection applications, the act of transferring the function of deciding such applications from person A to person B is incidental to that obligation or supplemental to that obligation. I have no hesitation in finding that the 2013 Regulations transferring the function from the Minister to the Commissioner are capable of being regarded as a measure which was incidental, supplementary or consequential upon an obligation arising from the Qualification Directive and thereby properly included in a Statutory Instrument designed to ensure that Ireland’s obligations under EU law are fully met. 45. I reject the argument of the applicant that the transfer of power from the Minister to the Commissioner is “radical and momentous”. I reject the argument that the transfer was a decision of principle and of policy not necessitated by obligations of EU membership. Identification of a decision maker is neither a matter of principle nor of policy. It is a mechanical administrative act involving only a choice as to who the person will be. It does not involve a choice as to what they will do or how they will do it. The Definition of Torture: 47. In this regard, the applicant refers to the dicta of Feeney J. in the case of N.H. v. Minister for Justice [2007] IEHC 277 in which he address the definition of torture contained in the 2000 Act:
47. The consequences of the amendment, contained in s. 186 of the Criminal Justice Act 2006, was to limit the definition of torture to acts or omissions done or made or at the instigation of, or with the consent or acquiescence of a public official. That limitation does not apply in article 15 of the Directive of 2004. Article 15, in identifying serious harm, refers at sub-para. (b) to torture or inhuman or degrading treatment or punishment of an applicant in the country of origin without such limitation. It follows that the consideration of the possibility of a person being potentially subject to torture prior to making a deportation order against that person under the Act of 2000, as amended by the Act of 2006 after the date of the amendment, would be on a different and more limited basis than that provided for in article 15 of the Directive. 48. Therefore, insofar as it is contended that the respondent, before making a deportation order on a date prior to the 10th October, 2006, was bound to consider and act in accordance with the Act of 2000 and, therefore, that no person would have been deported to their home state on foot of a deportation order made prior to the 10th October, 2006, if to do so would have fallen foul of what is now set out in relation to subsidiary protection in the Directive of 2004, would not be the case from the date of the amendment. The true position is that the definition of torture which the respondent had to consider subsequent to the implementation of the amendment contained in s. 186 of the Criminal Justice Act 2006 was narrower than that contained in art. 15 of the Directive.” 49. Counsel for the respondents submits that the applicants’ complaint in relation to the definition of torture is hypothetical and premature. In this regard, it is submitted that no consideration has been given to the issue of whether the claims made by the applicants in their application for subsidiary protection amounts to torture and thus it cannot be known if the applicants’ claim is found not to amount to torture, whether that conclusion will depend on the differences contended for by the applicants. The respondents rely on the decision of Cahill v. Sutton [1980] I.R. 269 in which Henchy J. commented on the locus standi of the plaintiff:
… While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another person's case would not be conducive to the administration of justice as a general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality. There is also the risk that the person whose case has been put forward unsuccessfully by another may be left with the grievance that his claim was wrongly or inadequately presented.” 51. It was also submitted that the even if the 2013 Regulations wrongly transpose the definition of torture, the decision maker is obliged to apply the provision of the Directive in preference to erroneous domestic implementing measures. In Fratelli Constanzo v. Comune di Milano (Case C-103/88) it was held that a municipal authority, like a court, was obliged by EU law to apply the provisions of a directive which are unconditional and sufficiently precise and to disapply any provision of national law which is inconsistent with such provisions. Discussion: 53. The respondent submits that there are a number of possible outcomes to the application. The applicant might be disbelieved in her narrative; it may be accepted that she faces inhuman or degrading treatment; or it may be accepted that she faces torture. It is submitted that in any of these eventualities, the alleged frailties in transposition as described above will cause no injury to her. The only circumstance in which she might be affected by the alleged infirmity is where the decision maker dismisses her claim because she fears torture from her family and torture from private sources is excluded as a basis for a claim for protection under the Irish regulations. 54. I accept that the Irish regulations have unlawfully narrowed the meaning of torture. The Directive does not limit its application to state actors and the Irish regulations impose such a limit. The 2013 Regulations prevent this applicant from claiming a fear of torture from non state actors and her narrative makes plain that she fears torture and /or inhuman and degrading treatment at the hands of her family. 55. In my view it would be churlish to ignore this defect and leave the matter to an administrative decision maker with a suggestion that he or she should disapply the Irish Regulations and defer to the Directive. 56. Though it is not certain that this defect will have negative consequences for the applicant, my view is that she is entitled to engage with a lawful regime of subsidiary protection in circumstances where her claim embraces a fear of torture emanating from private actors. That she may be defeated in such a claim should not disentitle her from pursuing the claim as contemplated by the Directive. 57. The issue having been fully argued and the court having concluded that the definition of torture in the 2013 Regulations is bad in law, it would serve no purpose for the court to remain silent on the point. Given the extent of litigation in this area it is inevitable that the High Court will have to decide this issue in the future. As it happens I am aware that a case listed for hearing shortly makes this same complaint. It would serve no useful purpose for the argument in this case to be duplicated in the coming weeks. It would be wasteful of judicial resources, not to mention wasteful of the respondents own resources, to postpone determination of this point to another day. This court is neither requested nor required to disapply the offending provision of the Regulation. No order of certiorari is sought relative to the infirmity. Neither is the court requested to direct the decision maker to apply the Directive in preference to the domestic regulations. A declaration is sought that the definition of torture embodied in the 2013 Regulations is invalid as being inconsistent with article 15(b) of the Qualification Directive. I am satisfied that this is an appropriate Declaration to grant. |
