Judgment Title: Izevbekhai & ors -v- Minister for Justice Equality & Law Reform
Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., Macken J.
Judgment by: Denham J.
Status of Judgment: Approved
Notes on Memo: Ruling on Preliminary issue.
THE SUPREME COURT
[Appeal No: 303/2008 & 64/2009]
Enitan Pamela Izevbekhai, Naomi Alero Izevbekhai (a minor)
and Jamima Temisanre Izevbekhai (a minor)
(both suing by their mother and next friend
Enitan Pamela Izevbekhai
The Minister for Justice, Equality and Law Reform
Judgment delivered on the 9th day of July, 2010 by Denham J.
1. A preliminary issue has arisen for determination in this case. The query is whether Council Directive 2004/83/EC of the 29th April, 2004, referred to in this judgment as "the Directive", and/or the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), referred to in this judgment as "the Regulations", which implement the Directive in Irish law, impose an obligation on the Minister to consider the application of the appellants, or whether the Directive and/or the Regulations apply to the appellants in any manner.
2. Enitan Pamela Izevbekhai, Naomi Alero Izevbekhai and Jamima Temisanre Izevbekhai, the applicants/appellants, are referred to in this judgment as "the appellants". The Minister for Justice, Equality and Law Reform, the respondent, is referred to as "the Minister".
4. Article 18 of the Directive states:-
Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V."
6. The recitals refer, inter alia, to a common policy on asylum, including a Common European Asylum System, as being a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community. Recital 6 states that:-
7. Article 2 of the Directive provides definitions. Paragraph (e) states:-
(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."
(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).
4.(1) (a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under section 3(3)(b) of that Act, make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.
(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).
(b) may take into consideration—
(ii) such other information relevant to the application as is within the Minister's knowledge.
(5) Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in section 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.
(6) Nothing in these regulations shall affect the discretionary power of the Minister under section 3 of the 1999 Act."
10. Section 3(1) of the Immigration Act, 1999, referred to in this judgment as "the Act of 1999", gives the Minister power to make a deportation order. Section 3(2)(f) of this Act provides:-
(f) a person whose application for asylum has been refused by the Minister"
11. Oral and written submissions were made on behalf of the appellants and the Minister. Essentially counsel were addressing the construction of the Directive and the Regulation. On behalf of the appellants it was submitted, inter alia, that there is a requirement under Article 18 of the Directive to grant subsidiary protection status, with all its attendant rights, to eligible persons and that there is nothing in the Directive which excludes from that obligation persons who have already been permitted to reside in the State under the old informal subsidiary protection system. Such person may well, after the 10th October, 2006, wish to apply for the new formal status of subsidiary protection. It was submitted that the Minister should have a discretion to allow such persons to apply for subsidiary protection. It was also submitted that if there is no discretion in Regulation 4(2), or elsewhere, for the Minister to accept for consideration a subsidiary protection application then a whole series of persons will be deprived arbitrarily of subsidiary protection status. Further, if there is no reserved discretion, it was submitted that the State would be in breach of Article 18 of the Directive in relation to several categories of persons. In addition, persons explicitly asserting no entitlement to refugee status and claiming subsidiary protection only, would be forced to embark on and exhaust the long drawn out refugee status determination process prior to being permitted to apply for subsidiary protection.
On behalf of the Minister it was submitted that neither the Directive nor the Regulations permit the making of an application for subsidiary protection by a person in respect of whom a deportation order was made prior to the 10th October, 2006. That being the case, there was no obligation on, or discretion of, the Minister under the Directive or the Regulations to consider any such application.
12. In considering this preliminary issue it is necessary to construe the Directive and the Regulations.
13. The Directive requires Member States to grant a form of international protection status, called subsidiary protection status, to persons who do not have the protection of refugee status but who are in need of a form of international protection. The Directive explicitly states that: "Member States shall grant subsidiary protection status" to an eligible person: see Article 18 of the Directive which is set out in full earlier in this judgment. The Directive is dated the 29th April, 2004, and it does not itself cite any commencement date. Clearly this Directive places an obligation on Member States to grant subsidiary protection to eligible persons. The Directive itself does not exclude persons who have been informed of an intention to deport. There is no temporal limitation placed by the Directive.
14. A person eligible for subsidiary protection is defined in Article 2(e) of the Directive, as has been set out in full earlier in this judgment. The appellants have raised in the substantive case the risk of female genital mutilation of the minors. Nothing turns on the said definition or the substantive case in this preliminary issue.
15. It is necessary to consider the terms of the Regulations to see how the Directive has been implemented into Irish law.
16. Regulation 3(1) states that the Regulations apply to specific protection decisions made on or after the coming into operation of the Regulations, which was the 10th day of October, 2006. The list of decisions includes: (a) a recommendation under s.13(1) of the Refugee Act, 1996; (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 s.3(3) of the 1999 Act in respect of a person to whom subsection 2(f) of that section relates; and (d) a determination by the Minister under Regulation 4(4) or 4(5). Subparagraphs (a), (b) and (c) clearly relate to acts on or after the coming into operation of the Regulations. In relation to (c), the notification of an intent to deport, the notification of the appellants was prior to the coming into operation of the Regulations. Thus, if this were the only relevant section it would not apply to the appellants as the notification of intent to deport the appellants was made prior to the 10th day of October, 2006.
17. However, Regulation 3(1)(d) refers to a determination by the Minister under Regulation 4(4) or 4(5). These paragraphs refer to the determination of the Minister that a person is or is not eligible for subsidiary protection and is or is not permitted to remain in the State. No such determination could be made prior to the Regulations coming into force. All such decisions as to subsidiary protection would be made after the coming into operation of the regulations. This creates some ambiguity given the terms of Regulation 3(1).
18. Regulation 4(1) makes provision for an application for subsidiary protection. At the core of this analysis is Regulation 4(2). Regulation 4(2) has been set out earlier but for ease of analysis it is restated:-
19. The words "shall not be obliged to consider" must have a meaning. Another form of words could have been chosen, such as "shall not consider". This latter hypothesised version would exclude the Minister from considering any other than the form of applications listed. However, that was not the choice of words. Instead the regulation states that "The Minister shall not be obliged to consider …"
20. I interpret the word "obliged" as having its ordinary meaning, being "compelled", "restrained", "bound by". Thus these words of the regulation may be construed as:
22. Under this construction of the Regulations the Minister has a discretion to consider an application other than those specifically specified in Regulation 4(2). There may be many reasons for such a discretion. However, whatever the reason, the regulation gives this discretion to the Minister.
23. The discretion under Regulation 4(2) is to be distinguished from the fundamental sovereign discretion of the State which may be exercised by the Minister on behalf of the State over non-Irish nationals.
24. The above interpretation of Regulation 4(2) is supported by the terms of Regulation 3(1)(d) and Regulation 4(4). Regulation 3(1)(d) provides that the Regulations apply to specific decisions made on or after the coming into operation of the Regulations, specifically in 3(1)(d), it applies to a determination by the Minister under Regulation 4(4) or 4(5).
25. Regulation 4(4) provides:-
26. There is no issue of retrospectivity. There is no question of the Directive or the Regulations having a retrospective effect. The applications are current. They arose after the notice of intention to deport, which is not the decision in issue. Under Regulation 4(2) the Minister has a discretion to consider the application and make a decision under Regulation 4(4) or 4(5).
27. Further, I am satisfied that such an interpretation on the words of Regulation 4(2) is entirely consistent with the Directive. This construction ensures that the State complies with its obligations under Article 18 of the Directive.
N.H. v. Minister for Justice
The learned trial judge then addressed the issue before him in that case and he stated:-
(a) a person must have been refused asylum;
(b) such a person must be someone who the [Minister] is proposing to make a deportation order against;
(c) such a person must have received from the [Minister] a notification of a proposal to deport; (i.e. a person who may be deported);
(d) such a person must make an application within the fifteen day period referred to in the notification; and
(e) the application must be in the prescribed form."
31. Quite apart from the above decisions, I have considered the Regulations independently and have come to the view that the Minister does have a discretion under Regulation 4(2).
33. For the reasons given, on construing the Regulations, I am satisfied that the Minister has a discretion under Regulation 4(2) to consider the application of the appellants. The appellants do not have a right to have their application considered. The Minister is not obliged to consider the application. However, the Minister has a discretion to consider the application by the appellants, and I would answer the preliminary issue accordingly.