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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> L v Minister for Justice & Equality & anor and M v Minister for Justice Equality & anor and J v Minister for Justice Equality & anor [2019] IESC 75 (31 October 2019)
URL: http://www.bailii.org/ie/cases/IESC/2019/2019_IESC_75.html
Cite as: [2019] IESC 75
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Page 1 ⇓
O’Donnell J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
[S:AP:IE:2017:000174]
[S:AP:IE:2018:000088]
BETWEEN
V.J.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
[S:AP:IE:2017:000175]
[S:AP:IE:2018:000089]
BETWEEN
M.L.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
[S:AP:IE:2017:000176]
[S:AP:IE:2018:000087]
BETWEEN
J.C.M.
APPLICANT/RESPONDENT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
[S:LE:IE:2012:000505]
BETWEEN
M.L.
APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
[S:LE:IE:2012:000506]
Page 2 ⇓
BETWEEN
J.C.M.
APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Judgment of O’Donnell J. delivered the 31st day of October 2019.
Introduction
1 These cases have a very complex procedural history and raise a number of points about
the regime for decisions on applications for subsidiary protection which applied in Ireland
between 2006 and 2013, and which has given rise to much litigation and criticism both in
the Irish courts and in the Court of Justice of the European Union (“CJEU”). During that
period, Ireland operated what has been described accurately as bifurcated system. That
meant that, notwithstanding the obvious similarities between the criteria for a grant of
asylum and those for subsidiary protection, applicants for asylum were first dealt with
under a statutory scheme which established the Office of the Refugee Applications
Commissioner (“ORAC”), and an appeal to the Refugee Appeals Tribunal (“RAT”) resulting
in a formal decision of the minister to grant or refuse asylum. Under the provisions of
S.I. No. 518/2006 - European Communities (Eligibility for Protection) Regulations 2006
(“the 2006 Regulations”), subsidiary protection was designed to be granted to a person
whose application for asylum had been refused, and accordingly it was only at that point
that an application for subsidiary protection might be made. Such an application was
made to the Minister, and in practice considered by his or her departmental officials. Like
the decisions of both the ORAC and the RAT, the Minister’s decision was subject to judicial
review. The complexity of these procedures provided fertile ground for legal challenges,
and since the relevant law implemented the law of the European Union, such challenges
could and did lead to a number of references to the CJEU.
2 It is a feature of the law relating to immigration that legal challenges by way of judicial
review tend to be generic. The challenge to the validity of the decision often concerns a
point of law which may be of general application. Accordingly, if leave is granted for
judicial review, the consequence may be that a raft of subsequent identical challenges
raising the same point are raised in other cases, which often has the effect of creating
significant blockages in the asylum and subsidiary protection processes and in the courts.
Since, however, the individual applicants are often represented by different lawyers, the
process is an organic one. Not all the points that are raised are developed in the same
proceedings, or in the same way. Where the matters come before the High Court,
substantial efforts are made to attempt to isolate and determine points which govern a
significant number of cases, but the appeals in these cases are a cautionary tale in the
difficulty in managing such disputes and bringing them to a clear conclusion.
3 In order to understand the issues which remain for resolution in these appeals, it is
necessary to trace the course of three separate streams of litigation on issues relating to
Page 3 ⇓
subsidiary protection, only two of which are, however, directly involved in these
proceedings.
V.J.
4 In the first case, V.J. arrived in the State from Moldova on 18 October 2008. He sought
asylum in Ireland based on a fear of persecution in Moldova for reasons of political
opinion or activity. The persecution alleged involved threats of harm to himself and his
family after his wife, a member of an opposition party in Moldova, attempted to publish
an article implicating the son of the country’s president in illegal cross-border trade in
drugs and alcohol. His wife had arrived in Ireland in 2006, and they have one child
together here. His other children were in Moldova.
5 V.J.’s application for refugee status under s. 17 of the Refugee Act 1996 (as amended)
(“the 1996 Act”) was refused by letter dated 24 September 2009, for lack of credibility
following on an adverse decision of the RAT. The letter from the Minister informing V.J. of
the refusal of his application for refugee status was in standard terms, and offered the
applicant the opportunity of leaving the State voluntarily or consenting to a deportation
order, and informed him of his right to apply for subsidiary protection and/or make
representations to the Minister seeking permission to remain temporarily in the State in
accordance with s. 3(3)(b) of the Immigration Act 1999 (as amended) (“the 1999 Act”).
6 V.J. duly applied for subsidiary protection under the then applicable 2006 Regulations,
and, in the alternative, for permission to remain in the State temporarily, by an
application dated 15 October 2009. He was notified that the Minister had, however,
determined that he was not a person eligible for subsidiary protection by letter dated 5
April 2012, on the basis that his claim was not credible, and having regard to relevant
country of origin information. He was accordingly notified on 10 May 2012 that the
Minister had decided to make a deportation order in respect of him under s. 3 of the 1999
Act, requiring him to leave the State on 27 May 2012.
7 On 31 July 2012, the High Court (Cooke J.) (see [2012] IEHC 337) granted V.J. leave to
seek judicial review of the decision refusing him subsidiary protection. The sole ground
was formulated by the judge as follows:-
“By confining the right to apply for subsidiary protection to the circumstance in
which the asylum seeker's entitlement to remain lawfully in the State pursuant to s.
9(2) of the Refugee Act 1996 has expired and a decision has been taken to propose
the deportation of the applicant under s. 3(3) of the Immigration Act 1999,
Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of
1999, has the effect of imposing a precondition or disadvantage upon a subsidiary
protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th
April, 2004, and is incompatible with general principles of European Union law.”
8 This point has been referred to colloquially as the “enmeshment point”, and to avoid
additional confusion I will so refer to it in these proceedings.
Page 4 ⇓
M.L. and J.C.M.
9 Both M.L. and J.C.M. were asylum seekers who arrived in Ireland from the Democratic
Republic of the Congo (“the DRC”). M.L. arrived the on 24 September 2008. He sought
asylum in Ireland based on his fear of persecution should he returned to his country of
origin, arising out of the death of the wife of an army colonel in the health centre where
he worked. He alleges that he and his sister, a nurse at the centre, were arrested and
detained pending trial in a military court, during which time he was forced to watch his
sister being raped by guards. It is alleged that he and his sister are from Bas Congo and
of a minority Mundibu ethnicity, whereas the country is controlled by persons of Swahili
ethnicity.
10 M.L.’s application for refugee status was refused by letter dated 10 January 2011, again
on the basis that his claim was not credible. He applied for subsidiary protection on 21
January 2011, but was notified that the Minister had determined that he was not a person
eligible for subsidiary protection by a decision letter dated 25 July 2011. On 10 August
2011 his application for leave to remain was considered, and on the same day it was
determined that a deportation order should be made in respect of him. The deportation
order was signed on 11 August 2011, and notified to the applicant on 18 August 2011.
11 J.C.M. also arrived in the State from the DRC, in his case on 6 February 2009. His
application for asylum was based on his claim to have been a member of the Armée de la
victoire/Save the Congo religious movement established by Ferdinand Kutino, and worked
as a driver for Mr. Kutino’s wife. He claims that he was arrested by the authorities at a
protest and detained without charge for a number of months, during which time he was
threatened and beaten. He further claims he was released on agreement that he would
poison Mr. Kutino’s wife, but was unable to do so, and thus fled the DRC in fear of his life.
12 J.C.M.’s application for asylum was refused on grounds of lack of credibility, and was
consequently refused by the Minister on 22 September 2010. He applied for subsidiary
protection and leave to remain under s. 3 of the 1999 Act on 6 December 2010. His
application was duly refused by letter dated 25 July 2011.
13 Although the cases were factually unconnected, the applications for leave to seek judicial
review in M.L. and J.C.M. were heard together, primarily because the applicants were
represented by the same legal team, and had filed identical legal submissions.
14 On 12 October 2012, the High Court (Clark J.) (see [2012] IEHC 485) granted the
applicants in both cases leave to seek judicial review of their subsidiary protection
decisions on the following grounds:-
“The procedures applied by the Minister with regard to subsidiary protection are
unfair and in breach of natural and constitutional justice, and ultra vires Council
Directive 2004/83/EC and in breach of general principles of the law of the Union, in
that:
Page 5 ⇓
(1) The applicant is told of his right to apply for subsidiary protection after being told
that his right to remain in the State has expired;
(2) The applicant potentially carries findings of a lack of credibility with him from the
asylum process thereby creating a negative impression from the outset;
(3) The applicant cannot bring a claim unless he has been informed by the Minister that
he is a failed asylum seeker. The decision to refuse a declaration of refugee status
implies that the Minister has already given some consideration to the case and has
made a negative determination in relation to the applicant’s case. This creates an
impression of partiality on the part of the Minister whose officials will also consider
the subsidiary protection application;
(4) An application for subsidiary protection is considered during the pre-deportation
process, when the Minister has already formed an intention to consider making a
deportation order;
(5) The competence, knowledge and training of the civil servant assessing eligibility for
the subsidiary protection, a complex legal issue, is not regulated; and
(6) In contrast with asylum applications, subsidiary protection applications are not
considered by a person who is independent of the Minister in the performance of his
functions.”
At this point, it is necessary to note that, although Clark J. granted leave on these
grounds and the case proceeded to hearing upon them, she also refused to grant leave on
certain other grounds advanced by the applicants. The refusal of leave was then
appealed to the then Supreme Court (Supreme Court Record Nos. 505 and 506/2012).
Those appeals were pending at the date of establishment of the Court of Appeal, and
were initially transferred to the Court of Appeal pursuant to Article 64 of the Constitution.
When appeals in the cases of V.J. and M.L. and J.C.M. were brought to this court, the
Article 64 direction was cancelled, and these appeals returned to the Supreme Court. It
will be necessary to deal with them in due course. For present purposes, they can be
identified as “the Article 64 appeals”, that is, the appeals against the refusal by the High
Court of leave to seek judicial review in the M.L. and J.C.M. cases on certain identified
points.
15 The V.J., M.L. and J.C.M. cases together raised a number of related issues in respect of
the procedure for subsidiary protection applications. They were accordingly directed to be
heard together, and were listed for hearing before McDermott J. It might have been
anticipated, therefore, that the resolution of this case (and any appeal) would have
determined the major issues concerning the subsidiary protection regime. However, the
course of these proceedings was significantly affected, and deflected, by a third stream of
litigation, which followed a complex and unpredictable course.
The proceedings in the M.M. case
Page 6 ⇓
High Court, Hogan J., 18 May 2011), the applicant was a Rwandan refugee of Tutsi
ethnicity who sought asylum in Ireland on the basis that, if returned to his home state, he
was at risk of being prosecuted before a military court for openly criticising the manner in
which investigations into the Rwandan genocide in 1994 were being carried out. Once
again, this application for refugee status was refused for lack of credibility. The applicant
sought judicial review of the Minister’s decision to refuse to grant him subsidiary
protection on the basis that the manner in which his application was dealt with
contravened Article 4(1) of Directive 2004/83/EC (“the Qualification Directive”). Article
4(1) provided:-
“Member States may consider it the duty of the applicant to submit as soon as
possible all elements needed to substantiate the application for international
protection. In cooperation with the applicant it is the duty of the Member State to
assess the relevant elements of the application.”
17 The applicant argued that the reference to cooperation with the applicant and the duty of
the Member State meant that the authorities were under a duty to communicate with the
applicant during the course of the assessment of his application. In particular, it was
argued that in the event of a proposed adverse decision, that duty meant that the
authorities were obliged to supply a draft decision in advance to such applicant for his or
her comments.
18 Hogan J. reluctantly came to the conclusion that the position in European Union law was
not clear, and therefore referred the following question to the CJEU in accordance with
Article 267 TFEU:-
“In a case where an applicant seeks subsidiary protection status following a refusal
to grant refugee status and it is proposed that such an application should be
refused, does the requirement to cooperate with an applicant imposed on a Member
State in Article 4(1) of Council Directive 2004/83/EC require the administrative
authorities of the Member State in question to supply such applicant with the
results of such an assessment before a decision is finally made so as to enable him
or her to address those aspects of the proposed decision which suggest a negative
result?”
The court granted an interlocutory injunction restraining the deportation of the applicant
pending the outcome of the reference to the CJEU.
19 In a judgment delivered on 22 November 2012, the CJEU answered the question referred
to by Hogan J. in the negative (see M.M. v. Minister for Justice, Equality and Law Reform
(Case C-277/11) EU:C:2012:744 ). However, the terms of the decision of the CJEU gave
rise to considerable additional debate. At para. 95 of its judgment, the CJEU decided:-
“In the light of all the foregoing considerations, the answer to the question referred
is that:-
Page 7 ⇓
– the requirement that the Member State concerned cooperate with an applicant for
asylum, as stated in the second sentence of Article 4(1) of Directive 2004/83, cannot
be interpreted as meaning that, where a foreign national requests subsidiary
protection status after he has been refused refugee status and the competent national
authority is minded to reject that second application as well, the authority is on that
basis obliged – before adopting its decision – to inform the applicant that it proposes
to reject his application and notify him of the arguments on which it intends to base
its rejection, so as to enable him to make known his views in that regard;
– however, in the case of a system such as that established by the national legislation
at issue in the main proceedings, a feature of which is that there are two separate
procedures, one after the other, for examining applications for refugee status and
applications for subsidiary protection respectively, it is for the national court to ensure
observance, in each of those procedures, of the applicant’s fundamental rights and,
more particularly, of the right to be heard in the sense that the applicant must be
able to make known his views before the adoption of any decision that does not grant
the protection requested. In such a system, the fact that the applicant has already
been duly heard when his application for refugee status was examined does not mean
that that procedural requirement may be dispensed with in the procedure relating to
the application for subsidiary protection.”
20 In retrospect, it might be said that the second paragraph of this decision was intended as
a helpful clarification that in the bifurcated system, the second decision cannot be a
formality, and there must be a real opportunity for the applicant to make known his or
her views. The reference, however, to the “right to be heard” created an ambiguity which
gave rise to further contention, confusion and delay.
21 When the case in M.M. returned to the Irish High Court, it was clear that the applicant
could not succeed on the ground raised and which had been referred by Hogan J.: see
M.M. v. Minister for Justice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370.
However, there was considerable debate as to the impact of the second paragraph of the
decision of the CJEU. Ultimately, Hogan J. came to the conclusion that in the light of the
judgment of the CJEU, it was necessary to quash the decision of the Minister, because the
decision implied that the Minister had to make a separate and independent adjudication of
the applicant’s claims with the possibility of an oral hearing and determination. The
court’s decision can be paraphrased as follows:-
(1) The Minister was not required to provide the applicant with a draft decision on
subsidiary protection for comment prior to its adoption.
(2) An oral hearing would not routinely be required in an application for subsidiary
protection, although there may be circumstances in which an oral hearing would be
necessary (for example, where an adverse credibility finding was to be made which
was separate and distinct from such a finding made during the asylum process).
Page 8 ⇓
(3) In a bifurcated asylum and subsidiary protection system, the Minister could not
decide the subsidiary protection issue by relying on the reasoning of the asylum
decision, where such reliance precluded the applicant from re-opening certain
issues.
(4) The Minister’s decision to refuse subsidiary protection in this case relied completely
on the adverse credibility findings made in the asylum application, and where the
Minister made no separate and independent adjudication on the applicant's claims,
the applicant had not been afforded a fair hearing of his subsidiary protection claim.
(5) In order for a subsidiary protection hearing to be effective, it would require a
procedure whereby (i) the applicant was invited to comment on any adverse
credibility findings in the asylum application, (ii) the applicant was given a fresh
opportunity to revisit all matters bearing on the claim for subsidiary protection, and
(iii) the applicant was afforded a complete, fresh assessment of his credibility.
22 At this point, it is necessary to observe that these cases were ongoing at the time that the
reference in M.M. was underway, and were adjourned pending the outcome of that
reference. Furthermore, when the matter was recommenced before McDermott J. in the
High Court, although the CJEU had delivered its judgment on the second reference which
will be described shortly, the decision of Hogan J. represented the up-to-date position in
Irish law, and had a significant influence on the outcome of this case in the High Court.
Before, however, dealing with the decision in this case, and the impact of the M.M.
reference upon it, it is necessary to fast-forward the narrative in relation to M.M. and
complete the account of that tortuous case.
The M.M. appeal
23 The decision of Hogan J. in respect of the additional qualifying paragraph of the decision
of the CJEU on the first reference could be seen as an orthodox application of national law
principles, once it was determined, as it appeared to be, that the subsidiary application
process should be treated as a procedure entirely separate from the asylum procedure
which had preceded it, with a right to be heard. In Irish law, there is a strong tradition of
fair procedures requiring oral hearings and, if necessary, representation and cross-
examination before certain decisions are made. However, the question of the extent of
the right to be heard in a subsidiary protection application subsequent to a refusal of an
asylum application is one of European Union law. Accordingly, the decision of Hogan J.
was appealed to the Supreme Court. The Supreme Court in turn considered that it was
not clear what was contemplated by the right to be heard in the specific circumstances
identified in the CJEU decision, and accordingly referred the following question to the
CJEU for a preliminary ruling:-
“Does the “right to be heard” in European Union law require that an applicant for
subsidiary protection, made pursuant to Council Directive 2004/83/EC, be accorded
an oral hearing of that application, including the right to call or cross-examine
witnesses, when the application is made in circumstances where the Member State
concerned operates two separate procedures, one after the other, for examining
Page 9 ⇓
applications for refugee status and applications for subsidiary protection,
respectively?”
24 In a judgment dated 9 February 2017 (see M.M. v. Minister for Justice and Equality (Case
C-560/14) [2017] 3 CMLR 2), the CJEU gave the following answer to the question
referred by the Supreme Court:-
“56 In the light of all the foregoing considerations, the answer to the question referred
is that the right to be heard, as applicable in the context of Directive 2004/83, does
not require, as a rule, that, where national legislation, such as that at issue in the
main proceedings, provides for two separate procedures, one after the other, for
examining applications for refugee status and applications for subsidiary protection
respectively, the applicant for subsidiary protection is to have the right to an
interview relating to his application and the right to call or cross-examine witnesses
when that interview takes place.
57 An interview must nonetheless be arranged where specific circumstances, relating
to the elements available to the competent authority or to the personal or general
circumstances in which the application for subsidiary protection has been made,
render it necessary in order to examine that application with full knowledge of the
facts, a matter which is for the referring court to establish.”
25 The import of this decision was significant. As these cases illustrate, nearly all subsidiary
protection applications are made on the basis of, and by repeating, the matters set out
and advanced in the asylum application. It was rare for applicants to seek to make a
different or more elaborate case. It was normal for the subsidiary protection decision to
be made on the written materials, without an interview, and still less a cross-examination.
The import of the first decision of the CJEU in M.M., as interpreted by the Irish High
Court, suggested that standard process was presumptively invalid. By contrast, the
outcome of the second reference suggested that such a process was presumptively valid,
absent specific circumstances relating to the elements available to the competent
authority, or the personal or general circumstances in which the application was made.
In due course, the Supreme Court allowed the Minister’s appeal, and set aside the order
of certiorari granted by the High Court: see M.M. v Minister for Justice and Equality
[2018] IESC 10, [2018] 1 ILRM 361. The court held that in the bifurcated system
which existed in Ireland at the time of the decision on M.M.’s application for subsidiary
protection, it was permissible to make that decision on the basis of a written procedure,
so long as the procedures adopted were sufficiently flexible to allow the applicant to make
his case. That requirement had been adhered to in M.M.’s case. Exceptionally, it may be
necessary to permit an oral interview, but such an exceptional situation did not arise in
M.M.’s case: the application for subsidiary protection identified only those matters which
had already been relied on in the claim for asylum. The decision of the CJEU made it clear
that it was permissible to have regard to the information obtained in the asylum process,
and to the assessment of the decision-maker in that process. There was no basis for
contending for an oral hearing, still less for an adversarial hearing.
Page 10 ⇓
26 It is necessary now to return to the High Court decision in this case, keeping in mind that,
at the time, the court had available to it the decision of Hogan J. applying the first
reference in M.M., and the decision of the CJEU in the second M.M. reference.
The hearing before McDermott J.
27 In the immediate aftermath of the decision of the High Court in M.M. v. Minister for
Justice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370, the parties to this
appeal sought to amend their application to add the following ground:-
“The failure of the respondent to provide an oral hearing to the applicant for
subsidiary protection in circumstances where such a hearing is available to an
applicant for asylum is in breach of the fundamental principles of EU law and ultra
vires Directive 2004/83/EU.”
28 In the event, McDermott J. delivered a comprehensive judgment in which he dismissed
the applicants’ cases in respect of the enmeshment ground on which leave had been
granted by Cooke J. in V.J., and dismissed five of the six sub-categories of the fair
procedures grounds upon which leave had been granted by Clarke J. in the M.L. and
J.C.M. cases. However, in relation to the ground concerning the entitlement to an oral
hearing which had been added in the course of the proceedings, McDermott J. granted an
order for certiorari in all three cases. In doing so, he concluded that the judgments of the
CJEU in the first and second M.M. references meant that:-
(i) It was necessary that applicants for subsidiary protection be given an opportunity
to address the adverse credibility findings in their subsidiary protection decisions
which were quoted directly from the Refugee Applications Tribunal’s decision, and a
fresh opportunity to revisit the matters bearing on their claims for subsidiary
protection, having regard to the requirement that there be a separate and
independent adjudication on each claim.
(ii) It was not necessary that an oral hearing must be conducted in all cases permitting
the calling of witnesses or cross-examination of witnesses by applicants or their
legal representatives. However, it may be that circumstances will arise in which
the Minister should consider conducting such a hearing.
(iii) Nonetheless, applicants should be invited to comment upon adverse findings made
by the Refugee Appeals Tribunal. If such findings were to be relied upon to the
extent evident in the subsidiary protection decisions in V.J., M.L. and J.C.M.,
consideration should be given to whether this gave rise to “specific circumstances”
that would render an interview or hearing with the applicants necessary in order to
ensure that their rights to be heard were effectively observed.
(iv) The Minister should at least consider whether an interview and in some cases an
oral hearing ought to be afforded to an applicant when the materials include an
adverse finding on credibility by the Refugee Appeals Tribunal which is central to
Page 11 ⇓
the decision to be made on the subsidiary protection application and contested by
the applicant.
29 In that regard, McDermott J. granted certiorari on the additional ground, and also on
ground two on which leave had been granted by Clark J. in J.C.M. and M.L., that is, that
the potential carrying of a finding of lack of credibility from the asylum process created a
negative impression from the outset. It is apparent, however, from the reasoning in the
High Court judgment, that this aspect was found to follow from the conclusions of the
High Court in respect of the added ground, being itself one derived from the decisions in
M.M.
30 The Minister lodged appeals to the Court of Appeal in respect of the decision of
McDermott J. In addition, the Minister contested the decision to permit amendment of
the statement of grounds to include the additional ground, and further argued that, in any
event, the applicants were not entitled to succeed on the additional ground as formulated.
Thereafter, this court delivered its decision in M.M. v. Minister for Justice and Equality
[2018] IESC 10, [2018] 1 ILRM 361. That decision clearly had a significant impact on
the appeals in this case. Accordingly, the Minister sought permission to appeal directly to
this court by way of leapfrog appeal in order to clarify and resolve any outstanding issues.
For their part, the applicants, recognising that the decision of the Supreme Court in M.M.
undoubtedly strengthened the Minister’s appeal, indicated that they wished to cross-
appeal and advance additional grounds on which the decision of McDermott J. should be
sustained, namely the grounds which McDermott J. had dismissed. These were the
enmeshment ground upon which leave had been granted by Cook J. in V.J. and the
grounds upon which leave was granted by Clark J. in M.L. and J.C.M. By determinations
of this court dated 15 May 2018 (see [2018] IESCDET 68, [2018] IESCDET 69, and
[2018] IESCDET 70) this court granted leave to the Minister to appeal directly to this
court in order to resolve all outstanding issues in respect of the subsidiary protection
regime which had been applicable at least up until the introduction of S.I. No. 426/2013 -
European Union (Subsidiary Protection) Regulations 2013, and ultimately the
International Protection Act 2015. This was on the basis that the applicants would be
entitled to argue the additional bases upon which they contended that the decision of
McDermott J. could be upheld. The court also directed that the Article 64 direction be
cancelled so that the appeals from the refusal of leave by Clark J. should also be listed,
and that the cases should be case managed together.
Developments in case management
31 It is clear that these appeals raised issues of considerable complexity, as much from a
procedural as a substantive point of view. However, the parties adopted a realistic and
sensible position at case management that simplified the case at least to some extent.
First, the applicant in V.J. accepted that his case was indistinguishable from M.M. and that
in the light of the judgment of the court, the Minister’s appeal against that portion of the
judgment of McDermott J. must be allowed. This meant that the only question still live in
V.J. was whether the applicant was entitled to succeed on the enmeshment point. In
relation to the oral hearing point in M.L. and J.C.M., there remained a question as to
Page 12 ⇓
whether those cases could be distinguished on its facts so that they would fall into one of
the specific categories where an interview or oral hearing was required.
32 In relation to the points raised in M.L. and J.C.M. on which leave had been granted by
Clarke J., but which had failed before McDermott J., the applicants were also prepared to
refine those points somewhat. Thus, they did not seek to pursue points 5 and 6 (the
experience and training of the civil servants involved, and the independence of the
deciding body). Nevertheless, they maintained that McDermott J. had been correct to
find for the applicant on ground 2 (this was consistent with their position on the oral
hearing point), and they further maintained that they ought to have succeeded on
grounds 1, 3, and 4 also. Accordingly, the effect of this is that in addition to the M.M.
point, the points which remained for determination in the M.L. and J.C.M. cases were
based on the contention that the procedures applied by the Minister with regard to
subsidiary protection were in breach of natural and constitutional justice, and were ultra
vires and in breach of Directive 2004/83/EC and in breach of general principles of
European Union law in that:-
(i) The applicant is told of his right to apply for subsidiary protection after being told
that his right to remain in the State has expired;
(ii) The applicant potentially carries findings of a lack of credibility with him from the
asylum process, thereby creating a negative impression from the outset;
(iii) The applicant cannot bring a claim unless he has been informed by the Minister that
he is a failed asylum-seeker. The decision to refuse a declaration of refugee status
implies that the Minister has already given some consideration to the case and has
made a negative determination in relation to the applicant’s case. This creates an
impression of partiality on the part of the Minister whose officials will also consider
the subsidiary protection application;
(iv) An application for subsidiary protection is considered during the pre-deportation
process, when the Minister has already formed an intention to consider making a
deportation order.
33 While expressed in different ways, these contentions can be seen as elaborations on, or
developments closely related to, the enmeshment point at issue in V.J.
The Article 64 Appeals
34 In form, these appeals are appeals against the refusal of an application for leave to seek
judicial review. Since at the relevant time applications for subsidiary protection did not
fall under the procedure specified in s. 5 of the Illegal Immigrants (Trafficking) Act 2000,
such an application was made ex parte and did not involve any elevated threshold such as
a requirement that substantial grounds be established. The normal judicial review test
established in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 applied: it would be
sufficient to establish arguable grounds to be granted leave to seek judicial review.
Page 13 ⇓
35 It was plain that these matters should be dealt with at the same time as the appeals to
this court in respect of the decision of McDermott J. in the High Court. However, these
appeals added a further layer of procedural complexity to the case. It was conceivable, if
the appeals were dealt with as they stood, that if they succeeded and leave was granted
on some or more of the grounds, then the case would have to return to the High Court
and proceed as a normal judicial review, with perhaps the inevitability of an appeal to the
Court of Appeal and the possibility, indeed, of appeal to this court. It should be recalled
that these cases dated back to decisions made in late 2011 and 2012. On the other hand,
if the applicants succeeded on some of the grounds on which they sought to uphold the
decision of McDermott J., then a determination of these points would be fruitless, but they
would remain as potential grounds of challenge which might have to be dealt with in a
separate litigation, where perhaps the other grounds were not available.
36 The parties were prepared to agree that if the Supreme Court considered it was possible
to do so, the court could hear argument from both parties on the substantive merits, and
could make a final order in the case, either of certiorari if the argument succeeded, or an
order dismissing the claim if it was determined that the points advanced were without
merit.
37 The position taken by the parties in this respect was sensible and realistic. As already
observed, the actual decisions were made almost ten years ago in a process which was,
moreover, intended to operate speedily and to bring certainty to the position of asylum
seekers. In addition to the strong public, and, it might be said, private interest in the
finality of litigation, there was also the fact that it is desirable that these points should be
resolved by the same court which heard and determined the other points raised in these
cases. In retrospect, it seems clear that the parties should not have permitted the High
Court hearing before McDermott J. to proceed without a resolution of the question of
whether or not leave should have been granted on these points. An application for
expedition to either the Supreme Court or the Court of Appeal should have been made to
ensure that any determination made by the High Court would be comprehensive. It
seems likely that these points were thought at the time to be of little significance in
comparison to the more extensive issues on which leave was granted, but in the event,
the failure to have them finally determined and either rejected or permitted to be included
in the challenge then ongoing has created an additional level of procedural complexity
and the possibility that these proceedings, already of some antiquity, would continue well
into their second decade.
38 The consent and cooperation of the parties is certainly a welcome feature which is very
helpful, but it is equally necessary to consider whether it is possible, as a matter of law,
to take the course that common sense so clearly suggests. This court (and the Court of
Appeal) exercised appellate jurisdiction from a decision of the High Court. It is a normal
component of that jurisdiction that appeals are limited to issues determined, or at least
argued, in the High Court. Otherwise, one or other party is deprived of the opportunity of
a hearing in the High Court on the issue, and of appellate review. For that reason, an
appellate court is slow to review issues which, if argued, were not decided in the High
Page 14 ⇓
Court, and is slow to permit an argument to be advanced on appeal which was not made
in the court below.
39 However, the jurisdiction of an appellate court in this regard is to be exercised with some
[2013] 1 I.R. 227. The fundamental obligation of an appellate court is to permit the
parties to appeal against the decision of the lower court, and, if possible, to resolve the
dispute between the parties. Perpetual litigation is not a desirable state, and particularly
today when litigation is costly and when there is significant pressure on the resources of
the courts, courts should, if possible, adopt a course which brings proceedings to a fair
conclusion as soon as possible. The fundamental jurisdiction of an appellate court is to
hear an appeal from the decision of the court below, which is the outcome of those
proceedings. All of these issues were part of the within proceedings, and therefore
should, if possible, be resolved. Although an application for leave to seek judicial review
is an ex parte application, there is no difficulty in permitting a respondent to be put on
notice and to address argument to the court: this course is regularly taken in the High
Court. The only distinction, therefore, is the standard to be applied. In this case, in my
view, it was permissible to hear argument as to the substantive issue on the basis that if
the court concluded there was no substance to the point, it would uphold the refusal to
grant leave to seek judicial review. If, on the other hand, the court concluded that there
was substance to the point, then it would be permissible, having regard to the position
taken by the Minister, to make an order on consent quashing the determination. Either
way, the proceedings would end with the decision of this court. Accordingly, in my view,
it is appropriate to hear and determine these issues on their merits.
40 The four grounds of appeal relied on in this regard are that it is suggested that the trial
judge:-
(1) Erred in holding that the remedy of judicial review was sufficient to vindicate the
applicant’s fundamental European Union law right to apply for subsidiary protection
and/or have a review of such decision and/or was sufficient to vindicate the
applicant’s rights guaranteed by Article 47 CFREU;
(2) Erred in holding that the aggregate of the remedies available to the applicant were
sufficient to vindicate his European Union law rights, including his rights under
Article 47 CFREU;
(3) Failed to apply the principles in Gaydarov v. Direktor na Glavna direktsia
‘Ohranitelna politsia’ (Case C-430/10) EU:C:2011:749 to the effect that an effective
remedy must permit review of the legality of the decision as regards matters of
both fact and law in light of European Union law.
(4) Erred in law in holding that the applicant’s right pursuant to the principles of
equivalence and effectiveness were not breached in the circumstances.
Page 15 ⇓
41 It should be noted that in written submissions to this court, the applicants indicated they
were not relying on any principle of equivalence, and accordingly the only issue on this
latter ground was the question of a breach of the principle of effectiveness. These four
points are closely related, and in the light of the applicants’ submissions can be
designated as the “absence of an appeal mechanism point”.
42 Lastly, in the Article 64 appeal in J.C.M., the applicant appeals on the additional ground
that, in the leave application, Clark J. erred in refusing to permit the applicants to argue
the ground that judicial review did not provide an effective remedy because the court
cannot consider additional materials which were not before the decision-maker at the
time the decision was made, and erred in refusing to permit the applicant to introduce
new by way of affidavit.
43 The outcome of these developments is that the court must consider on this appeal the
following grounds:-
(1) Whether the facts of M.L. and J.C.M. are distinguishable from M.M. such as to
require an oral hearing or interview in his case;
(2) The enmeshment point upon which leave was granted by Cooke J. in V.J.;
(3) The enmeshment point as separately formulated by Clark J. in M.L. and J.C.M.;
(4) The absence of an appeal mechanism point upon which leave was refused by Clark
J.;
(5) The fresh evidence point in J.C.M.
Whether the cases of M.L. and J.C.M are distinguishable from M.M. so as to require
an oral hearing
44 It is submitted in both cases that while the applicants had both repeated in their
subsidiary protection applications the accounts which had been submitted (and found
lacking in credibility) in the asylum process, there were additional factors which meant
that their cases were both distinguishable from M.M. and were the type of exceptional
case contemplated in that case which required an oral hearing. The argument in J.C.M.
was that in addition to repeating the claim which had been submitted (and found wanting
in credibility) in the asylum process, the applicant had also raised concerns in his
subsidiary protection application about his treatment if returned to the DRC as a failed
asylum-seeker. He relied on report in the Guardian newspaper on 27 May 2009. The
Minister considered this together with further country of origin information and rejected
the applicant’s claims. It is now argued that, since this was an issue not raised or
considered in the asylum process, it was the type of case which meant that an oral
hearing was necessary before his subsidiary protection claim was rejected.
45 I cannot accept this submission. The decision in M.M. makes it clear that what is required
is that an applicant must have an opportunity of making his or her case. Whether an
interview or oral hearing is required depends on the nature of the case made, not whether
Page 16 ⇓
the particular point was raised in the asylum process. The type of contention made here
was one which by definition was something about which the applicants could have little if
any personal knowledge, nor was that suggested in their applications. It was an issue
particularly suited to determination by reference to the materials relating to country of
origin information, since the case made was that the applicants would suffer on return as
failed asylum-seekers. That depended on a status they shared with many others, rather
than any individual characteristic. That feature of the case did not, therefore, require an
interview, still less an oral hearing. The applicant in J.C.M. also makes a related point in
relation to later evidence in relation to returned asylum seekers which was not admitted
in the application for judicial review, and which it is necessary to address separately when
the Article 64 appeals are considered.
The enmeshment point
46 It is contended that the procedure under the 2006 Regulations was unfair because the
applicants were only entitled to apply for subsidiary protection after the application for
refugee status had been determined negatively. In this regard, it is worth remembering
that refugee status and the subsidiary protection of an applicant, while very similar, are
distinct concepts. Refugee status, speaking generally, arises from individual persecution
by State actors in consequence of the ethnic origin, religious beliefs, political alliance or
orientation of people or of groups within a society. Clearly, that may involve violence or
other grave threats, but these arise or are a real threat because of what people either
are, identify themselves as, or are perceived to be. Subsidiary protection, on the other
hand, arises where someone comes to the State and has a well-founded fear of violence
in their country of origin. That need not be because of their real or perceived status in
their country of origin but because of the absence of resort to such aspects of civic society
as police, courts and army which operate as a general threat to the well-being of an
applicant. While civil war may be an example of such a state, the difference is in the
generalised threat to life. Hence, a person applying for refugee status will no doubt focus
on violence, but there the test also involves the ostensible reason they say they are
targeted. In making a subsidiary protection application, that targeting need not form part
of the contention since generalised violence is the focus. Although therefore they are
closely related concepts they are distinct. Since these proceedings were commenced and
this point formulated, this court has delivered its decision in Nawaz v. Minister for Justice
[2012] IESC 58, [2013] 1 IR 142, following the reference to the CJEU in H.N. v.
Minister for Justice, Equality and Law Reform (C-604/12) [2014] 1 WLR 3371, which
covers much of this ground. It was observed there that since refugee status provides
greater protection for the individual than subsidiary protection, and since an applicant will
not necessarily be in the best position to identify the form of international protection to
which he or she may be entitled, it was in principle permissible for competent authorities
to determine the status most appropriate to the applicants’ situation. It followed,
therefore, that an application for subsidiary protection should not in principle be
considered before the competent authority has reached the conclusion that the person
seeking international protection does not qualify for a refugee status. At para. 36 of its
judgment, the CJEU stated:-
Page 17 ⇓
“36 It follows that Directive 2004/83 does not preclude national legislation which
provides that the requirements for granting refugee status must be considered
before those relating to subsidiary protection.”
47 In H.N., the CJEU also went on to consider other aspects of the process, and, in
particular, considered there was a requirement that the decision be made within a
reasonable time. Furthermore, the right to good administration encompassed objective
impartiality. That, however, was not breached where a national authority informed the
applicant prior to considering the application for subsidiary protection that the authority
was considering making a deportation order. At para. 54 of its judgment, the court
observed:-
“54 It is in fact common ground that the reason for that disclosure on the part of the
competent authorities is that it has been found that the third country national does
not qualify for refugee status. That finding does not, therefore, mean that the
competent authorities have already adopted a position on whether that third
country national satisfies the requirements for being granted subsidiary protection.
55 Accordingly, the procedural rule at issue in the main proceedings is not at odds with
the requirement of impartiality pertaining to the right to good administration.”
48 It is the case that a considerable time period could and did elapse between the decision
on refugee status and any subsequent decision on subsidiary protection. In these cases,
a period of up to two years was involved. However, the applicants cannot establish any
prejudice in that regard. Even if a court concluded that the delay was inordinate and in
breach of the applicants’ rights under national law and/or European Union law, it would
not necessarily follow that the appropriate remedy would be an order quashing the
decision actually made. At paras. 65 and 66 of his judgment, the learned High Court
judge rejected the applicants’ claim in this regard, and in my view he was correct to do
so.
49 It is perhaps worth observing at this point that the bifurcated regime applicable in Ireland
during the relevant time was cumbersome, ineffective, and an easy target for legal
challenges. It was therefore the subject of considerable delays. All these factors made
the system inefficient and unsatisfactory, both from the point of view of the
administration, and of any applicant involved in the process. For these reasons, it was
the subject of criticism in a number of decisions. Inefficiency however is not necessarily
the same as fundamental unfairness. In principle, a two-step process with separate
decision-making procedures and decision-makers, with the possibility of commenting on
and addressing the finding made in the asylum process in the context of the subsidiary
protection decision, and the possibility of legal challenges at each stage, is not, in
principle, self-evidently unfair to an applicant. Valid criticisms of inefficiency and delay
can be levelled at the system, but at the same time, a perverse feature of the system was
that, however frustrating the delays were for applicants, they often had the effect of
improving any claim for humanitarian leave to remain. The fact that the procedure could
Page 18 ⇓
be rightly criticised on grounds of inefficiency, does not automatically mean that it lacked
all legality.
50 Next, it is contended that the procedure under the 2006 Regulations was unfair,
disproportionate and in breach of Article 47 CFREU because an application for subsidiary
protection would only be considered once the applicants’ temporary entitlement to remain
in the State had expired.
51 In this regard, the applicants made two arguments. First, it was said that the assessment
of the subsidiary protection claim against the background of the proposal to deport under
s. 3(3) of the Immigration Act 1999 was unfair, disproportionate and in breach of the
applicants’ rights to an effective remedy, largely because of the different time limits for
challenging a deportation decision and a decision in relation to a refusal of subsidiary
protection. Second, they say that the applicants’ position on receipt of the three options
letter was analogous to that of the successful applicants in Luximon v. Minister for Justice
52 Prior to the commencement of s. 34 of the Employment Permits (Amendment) Act 2014
on 3 October 2014, decisions to refuse subsidiary protection were not included in the list
of decisions to which the statutory provisions in s. 5 of the Illegal Immigrants
(Trafficking) Act 2000 (“the 2000 Act”) applied, which provided at the time for a 14-day
time limit to challenge, among other things, deportation orders, which time limit could be
extended for good reason. (Following the amendment of the section by s. 34 of the
Employment Permits (Amendment) Act 2014, the relevant time limit is now 28 days). At
the time of the decision in this case, subsidiary protection decisions were not included in
any of the statutory regimes for limiting the period for judicial review. It followed, that at
the time when M.L. and J.C.M. received their decisions on subsidiary protection, the then
requirement of O. 84, r. 21(1) was that an application for leave should be made promptly
and in any event within three months from the date when the ground of application arose,
or six months when the relief was sought was certiorari, unless the court considered there
was good reason for extending the period. At the time V.J. received a decision on his
subsidiary protection application, the time limit had been altered by the Rules of the
Superior Courts and was now three months from the date when the grounds of
application first arose again with the possibility of an extension under O.84, r. 21(3).
53 The applicants say that once their applications for subsidiary protection were refused,
they were liable to be deported at any time. It follows, therefore, that if a challenge was
not brought within 14 days of the deportation order, an applicant could be deported
before the end of the ordinary three or six month time limit for challenging the subsidiary
protection decision has expired. This, they say, would deprive them of a right to an
effective remedy under Article 47 CFREU.
54 First, it should be noted, and indeed it is fundamental to this case, that in the present
case the manner in which the procedures were operated did not prevent an of the
applicants from seeking judicial review of their subsidiary protection decisions: they were
each in a position to challenge both the deportation order and the subsidiary protection
Page 19 ⇓
decisions together, and did in fact do so. This is not surprising. The process for
determination of applications for international protection is quite protracted and it is well
known to those practising in the field that, since it is the application for refugee status
which permits entry into the State, deportation is a potential consequence of remaining in
the State after an adverse determination. The possibility of applications for subsidiary
protection and humanitarian leave to remain is also well known. This issue was discussed
in the context in In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999
[2000 2 IR 360, in which Keane C.J., giving the judgment of the court, addressed the
contention that the initial 14 day period for challenge was too short:-
“As a preliminary observation, it should be recalled that a person who is the subject
of a deportation order will have become aware in the course of the extended
processing of his or her application that he or she is on real risk of becoming the
subject of a deportation order. In addition, the person concerned will in the vast
majority of cases have received almost three weeks’ notice of the intention to make
the deportation order. Once the deportation order has been notified to the person
concerned there are fourteen days from the date of notification (or deemed
notification as the case may be) within which to apply for judicial review and this in
turn is subject to an extension at the discretion of the court. There is nothing in the
section which would prohibit the person concerned from applying for an extension
of the fourteen day period before that actual fourteen day period had elapsed.”
55 These observations appear applicable in the present context, in which the applicants
argue, in effect, that due to the absence of an explicit provision preventing deportation
before a minimum time has elapsed after the refusal of subsidiary protection, and the
short time limit for challenging a deportation order, it is possible that a person could be
deported before the end of the ordinary three or six-month time limit for challenging his
or her subsidiary protection decision.
56 The applicants argue that on receipt of the three options letter and during the processing
of a subsidiary protection application, they did not have an entitlement to reside in the
State, and thus were unlawfully present in the State. It is unsatisfactory that there
appears to have been no express requirement that applicants for subsidiary protection
should be granted temporary leave to remain in the State pending the Minister’s decision
on their application. That situation was remedied in Regulation 4 of S.I. No. 426/2013 -
European Union (Subsidiary Protection) Regulations 2013, and subsequently in ss. 16 and
17 of the International Protection Act 2015. However, Regulation 4(5) of the 2006
Regulations provided that where the Minister determined that an applicant was 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”. Further, s. 3(5) of the 1999 Act
provided that the provisions of s. 3(3)(b) shall not apply to a person who is outside the
State, which would tend to imply that persons making representations under s. 3(3) as
per the invitation in the three options letter will do so while still in the State.
Page 20 ⇓
57 On that basis, it appears there was no question of the applicants being deported or
otherwise required to leave the State before their applications for subsidiary protection or
humanitarian leave were determined. Even if it might technically be said that the
applicants were, due to a gap in the legislation, “unlawfully present” in the State within
the meaning of s.5(2) of the 2004 during that time, they do not show that they suffered
any adverse consequence by virtue of that position.
58 Similar considerations applied to the fact that there was a 15-day time limit applicable for
the making of an application for subsidiary protection following receipt of notification that
their claim for refugee status had been refused. In Danqua v. Minister for Justice and
contrary to the principle of effectiveness, since it did not ensure in practice that all
applicants were afforded a genuine opportunity to submit an application for subsidiary
protection. However, unlike the applicant in Danqua, the applicants in this case cannot
show that they were adversely affected by this rule: each of their applications appears to
have been made in time, and was accepted for consideration by the Minister.
59 The applicants also rely on the recent decision of this court in Luximon v. Minister for
Justice [2018] IESC 24, [2018] 2 IR 542. In that case, the applicants had entered the
State and resided lawfully for a considerable period on the basis of Stamp 2 student
permissions until a change in the scheme promulgated in 2011 required them to apply to
the Minister under s. 4(7) of the Immigration Act 2004 to vary their permission to remain
to a Stamp 4 permission. The decision refusing to vary the applicants’ permission in this
manner required them to leave the State by a specified date, unless they obtained an
alternative permission by that time. Critically, the Minister took the position that, in
considering the application to vary the permission under s. 4(7) of the 2004 Act, he was
not required to have any regard to the applicants’ rights under Article 8 ECHR, and
argued that he was only obliged to consider those rights in the context of a decision to
make a deportation order.
60 This court held that there was no power under s. 4(7) of the 2004 Act to direct the
applicants to leave the State. Furthermore, in order to be able to make representations
under s. 3(3)(b) of the 1999 Act (including representations in relation to Article 8 ECHR)
the applicants would be obliged to remain unlawfully in the State pending the deportation
process, and were constrained therefore to act in an unlawful manner. This could not be
lawful, or in accordance with public policy. Even if the power the Minister purported to
exercise had existed, the Minister was required to act in accordance with the applicants’
rights under Article 8 ECHR at the s. 4(7) decision stage, and this requirement was not
met where compliance with the Minister’s direction to leave the State would have meant
that their Article 8 ECHR rights as members of family units would be violated in any
event.
61 Luximon is, however, markedly different from the present cases. There was no question
of a consideration of Article 8 ECHR rights in the context of the refugee or subsidiary
protection applications in these cases, and consequently no question of the Minister
Page 21 ⇓
seeking to defer consideration of such matters until a decision on deportation. Unlike the
applicants in Luximon, the three-options letter did not direct the applicants to leave the
State. With regard to the third option offered of applying for subsidiary protection and/or
making representations to the Minister under s. 3(3)(b) of the 1999 Act, there is no
suggestion in the letter that the applicants were required to leave to leave the State
before making an application for subsidiary protection or representations under s. 3(3)(b)
of the 1999 Act. In Luximon, the Minister sought to make a decision which on its own
terms – a direction to leave the State – necessarily affected in a real way the applicants’
Article 8 rights without having regard to those rights. No such circumstance arose in
these cases.
62 As already set out, McDermott J. quashed the subsidiary protection decisions challenged
by the applicants in J.C.M. and M.L. on the basis of both the oral hearing point already
discussed, and the second ground upon which Clark J. had granted leave, that is, that an
applicant for subsidiary protection potentially carried a finding of lack of credibility with
him or her from the asylum process, thereby creating a negative impression from the
start. It is accordingly necessary to address that point.
63 The reasoning of the High Court judge is set out at paras. 92 to 94 of his judgment and it
is clear that this conclusion was closely linked to, and consequential upon, the finding in
respect of the oral hearing issue. Thus, it was concluded that the respondent had:-
“failed to afford the applicants a fair opportunity to address issues of credibility in
the subsidiary protection application. The decision-makers in each of these cases
have failed to rely on any material outside the adverse credibility findings made by
the Tribunal concerning the assertions of fact made by them in respect of their
claims. I am satisfied on the basis of the judgment in M.M. v. Minister for Justice
(Hogan J.) that it was essential that each of the applicants be given an opportunity
to address the adverse credibility findings quoted directly in the subsidiary
protection decisions from the Refugee Appeals Tribunal decisions and a fresh
opportunity to revisit the matters bearing on their claims for subsidiary protection
having regard to the requirement that there be a separate and independent
adjudication on each of these claims”.
64 It is apparent, therefore, that the conclusion of the learned trial judge in this respect was
dependent on his reliance on the judgment in the High Court in M.M. v. Minister for
Justice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370 and the conclusion
that there had to be a fully separate and independent adjudication. This conclusion cannot
stand in the light of the decision of this court in M.M. v. Minister for Justice and Equality
[2018] IESC 10, [2018] 1 ILRM 361. It does not appear to me that the point has merit
when viewed on its own. It is perhaps slightly contentious to say that the credibility
finding “travels with” the applicant. The asylum application and determination are part of
the materials before the Minister in relation to which the applicant can make submissions.
Indeed, that was the point which the CJEU emphasised in the additional paragraph in
M.M. v. Minister for Justice, Equality and Law Reform (Case C-277/11) EU:C:2012:744
Page 22 ⇓
there had to be an opportunity for the applicant to be heard in that regard and in relation
to his or her application more generally. If the Minister was entitled to have regard to the
asylum findings – and that is clear from the decision in M.M. – then there is nothing
unlawful in the credibility findings being before the Minister. The applicants also argue in
this regard that they were not told that this was the case, and had they been told, they
would have addressed those findings. This is a point has a sense of being influenced by
the manner in which the legal position has been clarified by the repeated decisions of the
CJEU and this court. It suggests perhaps that the outcome of MM was not anticipated, and
seeks to turn that to advantage by suggesting the Minister was under an obligation to
inform the applicants of their rights to make submissions on matters including credibility.
It is apparent that the applicants originally contended for a much different procedure.
However, the Minister was not obliged to tell the applicants what the legal position was,
or what matters the applicant could or could not address, so long as the Minister did not
preclude submissions on any relevant matter. The applicants here were not under any
constraint as to the matters they sought to advance. Accordingly, I would reject this
argument.
The absence of an appeal mechanism point in M.L. and J.C.M.
65 This point arises in the Article 64 appeals in M.L. and J.C.M. The applicants argue that
judicial review was the only means of challenging the refusal of their applications for
subsidiary protection, and is not an effective remedy for the purposes of Article 47
CFREU.
66 It is important to recall that this point was raised and dismissed in these cases in 2012,
when the application for leave to seek judicial review was made to Clark J. It is a
variation of a point that has been advanced for some time in the context of the right to an
effective remedy under the ECHR, and, latterly, as a requirement of European Union law,
most clearly pursuant to Article 47 CFREU. The consistent position of the jurisprudence
has been that judicial review in Irish law is a sufficiently flexible remedy to constitute an
effective remedy, whether viewed through the prism of the CFREU, the ECHR, or indeed
the Irish Constitution. It was on this basis that leave was refused.
67 By the time this case came on for hearing in this court, the argument faced the even
more substantial hurdle that the issue appeared to have been addressed comprehensively
(Unreported, Supreme Court, 21 December 2017), referring with approval to the prior
I.R. 591.
68 The applicants, however, sought to refer to decision of the CJEU in Secretary of State for
the Home Department v. Banger (Case C-89/17) [2019] 1 CMLR 6. The fourth
question referred by the Upper Tribunal (Immigration and Asylum Chamber) (United
Kingdom) in that case was whether a rule of national law which precluded an appeal to a
court or tribunal against a decision of the executive refusing to issue a residence card to a
person claiming to be an extended family member was compatible with Article 3(2) of
Directive 2004/38 (often referred to as the Citizenship Directive).
Page 23 ⇓
69 The facts in Secretary of State for the Home Department v. Banger (Case C-89/17)
[2019] 1 CMLR 6 were both complex and unusual. It appears that initially, and for
some time thereafter, it had been assumed that the relevant provisions in England and
Wales introduced in 2006 permitted an appeal to the tribunal system from a decision
refusing a residence card to a person claiming to be an extended family member.
However, in a controversial decision, the Upper Tribunal concluded on an interpretation of
the Nationality Immigration and Asylum Act 2002, and implementing EEA Regulations
2006, that contrary to the submissions of both the appellant and the Secretary of State,
that an appeal did not exist from a refusal by the Secretary of State to grant a residency
card to a person claiming to be an extended family member: Sala (EFMs: Right of
Appeal) [2016] UKUT 411 (IAC), [2017] Imm AR 141. In the event, that decision was
disapproved of by a judgment of the Court of Appeal of England and Wales in Khan v.
Secretary of State for the Home Department [2017] EWCA Civ 1755, [2018] 1 W.L.R.
1256, which was itself specifically approved by the Supreme Court of the United Kingdom
E.R. 177. Furthermore, new regulations came into force in 2019 providing for an appeal.
However, there remained a group of cases not captured by the new regulations, and still
governed by the decision in Sala. The fourth issue referred by the Upper Tribunal to the
CJEU was therefore, whether a rule of national law which precluded an appeal to a court
or tribunal against the decision of the executive refusing to issue a residence card to a
person claiming to be an extended family member was compatible with Directive
2004/38. As the court observed, that question had to be understood in the context of the
previous decision of the Upper Tribunal in Sala. At para. 42 of the judgment, the court
observed that the question therefore raised “not the possible absence of review by a court
for those persons, but whether Directive 2004/38 requires a redress procedure whereby
matters of both fact and law may be reviewed by a court”. The court observed at para.
48 that the provisions of Directive 2004/38 had to be interpreted in a manner that
complied with the requirements flowing from Article 47 CFREU, so that persons must have
available to them an effective judicial remedy against the decision in question, permitting
a review of the legality of that decision as regards matters of both fact and law in the
light of European Union law, citing in that respect the judgment in Gaydarov v. Direktor
na Glavna direktsia ‘Ohranitelna politsia’ (Case C-430/10) EU:C:2011:749. The court
expressed its conclusion in the following passage:-
“49 Consequently, it must be found that the procedural safeguards provided for in
Article 31(1) of Directive 2004/38 are applicable to the persons envisaged in point
(b) of the first subparagraph of Article 3(2) of that directive.
50 As regards the content of those procedural safeguards, according to the Court’s
case-law, a person envisaged in Article 3(2) of that directive is entitled to a review
by a court of whether the national legislation and its application have remained
within the limits of the discretion set by that directive (judgment of 5 September
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51 As regards its review of the discretion enjoyed by the competent national
authorities, the national court must ascertain in particular whether the contested
decision is based on a sufficiently solid factual basis. That review must also relate
to compliance with procedural safeguards, which is of fundamental importance
enabling the court to ascertain whether the factual and legal elements on which the
exercise of the power of assessment depends were present (see, by analogy,
46). Those safeguards include, in accordance with Article 3(2) of Directive 2004/38,
the obligation for those authorities to undertake an extensive examination of the
applicant’s personal circumstances and to justify any denial of entry or residence.
52 In the light of the foregoing considerations, the answer to the fourth question is
that Article 3(2) of Directive 2004/38 must be interpreted as meaning that the
third-country nationals envisaged in that provision must have available to them a
redress procedure in order to challenge a decision to refuse a residence
authorisation taken against them, following which the national court must be able
to ascertain whether the refusal decision is based on a sufficiently solid factual
basis and whether the procedural safeguards were complied with. Those safeguards
include the obligation for the competent national authorities to undertake an
extensive examination of the applicant’s personal circumstances and to justify any
denial of entry or residence.”
70 It is apparent from the judgment of the court that it does not purport to extend, alter or
reverse the existing case law, but rather emphasises it. Furthermore, insomuch as any
principle of the interpretation of Article 47 CFREU is to be deduced from the judgment, it
is plain that what is required is a review of the decision which is capable of ascertaining
whether the refusal decision was “based on a sufficiently solid factual basis”. While
requiring, therefore, a searching review, the judgment plainly stops short of requiring an
appeal which would involve a rehearing and a substitution of the views of the appellate
body for that of the decision-maker. Given, therefore, the terms of the judgment in
and the fact that it is not presented as a departure from the prior case law of the
court, all of which has been considered in the recent Irish decisions, the judgment does
not, in my view, raise any sufficient basis for questioning the law that the decisions of the
Irish courts only recently laid down: as noted above, in A.A.A. v. Minister for Justice
[2017] IESC 80 (Unreported, Supreme Court, 21 December 2017), and N.M. v. Minister
for Justice [2016] IECA 217, [2018] 2 I.R. 591, it was held that judicial review as is
available in Ireland is an effective remedy for the purposes of Article 47 CFREU. It is
perhaps noteworthy that in F.M. v. The Minister for Justice and Equality [2018] IEHC 274,
(Unreported, High Court, Humphreys J., 17 April 2018), the High Court came to a similar
conclusion in relation to an argument advanced on the basis of the opinion of Advocate
General Bobek in Banger.
Developments since the hearing in this case
Page 25 ⇓
71 The applicants in correspondence have sought to draw the court’s attention to further
developments in European Union law, and of the development of the Banger proceedings
in England and Wales. In the first place, it was suggested that the opinion of Advocate
General Bobek given on 30 April 2019 in Torubarov v. Bevándorlási és Menekültügyi
Hivatal (Case C-556/17) EU:C:2019:339 was relevant. That case was very unusual. In
2015, the Hungarian legislature had changed the competence of courts when reviewing
administrative asylum decisions from having the possibility to directly alter a decision to a
power to merely to annul and remit. In Torubarov, an application had been made for
international protection in 2013. It was rejected by the administrative authority twice.
Both these decisions were annulled for different reasons by the referring court and the
application was then reviewed and rejected for a third time, apparently in disregard of the
guidance that had been issued in the referring court. The referring court therefore asked
whether, as a matter of European Union law, it could derive the power to alter the
administrative decision from European Union law, and more specifically from Directive
2013/32/EU on common procedures for granting and withdrawing international protection
(known as the Procedures Directive) read in the light of Article 47 CFREU.
72 Advocate General Bobek suggested that Directive 2013/32/EU read in conjunction with
Article 47 CFREU meant that a model of judicial review endowed with a mere cassational
power where judicial guidance is effectively being disregarded by administrative bodies
fails to meet the requirements of effective judicial review set out in the directive, as
interpreted in the light of Article 47(1) CFREU.
73 Despite the superficial points of comparison between Torubarov and this case, in that it
involves judicial review in the context of an application for international protection, it is
apparent that the legal issue is quite distinct. Advocate General Bobek did not find that a
form of review endowed with cassational power, still less judicial review as available in
Ireland, was not, in itself, an effective remedy under Article 47 CFREU which is what the
applicants would require to establish if they were to succeed. Instead, it was only where
the cassational power was being disregarded by the administrative power to which it was
being directed, that it could be said that the power was not an effective remedy. If
anything, therefore, the import of the opinion is adverse to the applicants: it is at least
implied that judicial review which is complied with by the administrative bodies to which it
is directed, is an effective remedy for the purposes of Article 47 CFREU. Furthermore, the
decision is plainly distinguishable. Not only is there no suggestion that there is any
disregard by the Minister of the decisions of the court on judicial review and asylum
matters, but the power of judicial review in this jurisdiction extends to orders of
mandamus, if necessary directing an administrative body to decide a case in accordance
with law. I note that the CJEU has recently delivered its decision in Torubarov v.
Bevándorlási és Menekültügyi Hivatal (Case C-556/17) EU:C:2019:626, which indeed the
applicants’ solicitors have also submitted to the court. For completeness I should observe
that it does not appear to me that it contains anything that advances the applicant’s
contentions.
Page 26 ⇓
74 More recently, the applicants have returned to the Banger case. It was stated in further
correspondence that at the hearing reliance had been placed by the applicants in M.L. and
J.C.M. in respect of the effective remedy argument on the recent judgment of the CJEU in
Secretary of State for the Home Department v. Banger (Case C-89/17) [2019] 1 CMLR 6
and it had been pointed out that the judgment had not been interpreted by the UK
referring court but was due for hearing. The letter further stated: “You will recall the
issue related to whether judicial review was an effective remedy”. The letter stated that
the barristers’ chambers involved in representing the claimants case in the Banger case
had announced that the Secretary of State for the Home Department had withdrawn the
impugned regulations and was due to introduce regulations providing for a right of
appeal, that accordingly there would be no need for a substantive case to be heard, and
that the claimant had been invited to withdraw the claim for judicial review. It was said
that the approach of the United Kingdom authorities showed their understanding of the
Banger decision was that Article 47 CFREU required a full merits appeal. It should be
observed at this point that for the reasons set out above, the issue in Banger did not
relate precisely to “whether judicial review was an effective remedy”. Rather, it related
to the somewhat unusual circumstances which had arisen in England and Wales following
on the decision in Sala.
75 Recently, the solicitors for the applicants wrote to this court again, stating that the
statement made that the proceedings in Secretary of State for the Home Department v.
Banger (Case C-89/17) [2019] 1 C.M.L.R. 153 were to be withdrawn was inaccurate, and
that in fact the matter had proceeded to a hearing and had resulted in a recent decision
of the Upper Tribunal (Immigration and Asylum Chamber). They contended that the
conclusion of the Upper Tribunal was that the European Union law required a redress
process more akin to a statutory appeal rather than judicial review. The decision of the
Upper Tribunal (Lane J. and Judge Rimington) was, it appears, delivered on 10 April 2019,
and is to be found at [2019] UKUT 194 (IAC). At para. 40 of the judgment, it is stated:-
“40 There are two points which indicate from the judgment that a full merits appeal and
thus a statutory appeal is required. First, the judgment refers to a redress
procedure which must be able to decide whether the refusal decision was founded
on a sufficiently solid factual basis. The nature of that redress procedure is more
aligned with the process in a statutory appeal than judicial review. Secondly, the
Secretary of State has effectively recognised this aspect of the judgment by
producing legislation in express recognition of that ruling, which offers a statutory
appeal.”
76 It is contended on behalf of the applicants that the fact that the judgment was interpreted
in this way by the courts of one Member State gives rise at least to a situation where it
cannot be said that the law is clear, and therefore a reference to the CJEU is required.
77 I cannot accept this contention. It is apparent from the judgment of the Upper Tribunal,
and indeed the judgments which precede it, that the background to that case in terms of
the statutory provisions it involved was particularly obscure, and the different turns taken
Page 27 ⇓
in the case law prior to the decision meant that the area was particularly complex and
distinct. Furthermore, the Upper Tribunal commented adversely upon the approach of the
Secretary of State and the apparent dilatoriness in making available the residency permit
to the applicant, which had been promised in the public announcement made by the
Secretary of State of the proposed introduction of new regulations. In those
circumstances, the Upper Tribunal proceeded to determine an appeal which might
otherwise have been regarded as moot.
78 It is apparent that the issue in that case arose in very particular circumstances which
were unique to England and Wales, and far removed from the fundamental issue raised
here – whether judicial review in Ireland is an effective remedy for the purposes of Article
47 CFREU. It is noteworthy that there was only a single basis for the Upper Tribunal’s
interpretation of the judgment of the CJEU in Secretary of State for the Home Department
v. Banger (Case C-89/17) [2019] 1 CMLR 6 as requiring a statutory appeal, namely
that it was considered that the reference to establishing that the decision was founded on
sufficiently solid factual basis was considered to be “more aligned with the process of
statutory appeal than judicial review”. For reasons already addressed, I respectfully
doubt that this conclusion can in fact be drawn from the decision of the CJEU, certainly as
far as the Irish legal system is concerned, which is, of course, the only issue arising in
this case.
79 The question of whether judicial review in Ireland can be said to be an effective remedy
for the purposes of the ECHR or the CFREU is one which has been widely considered in
Irish courts, and on which at the moment the law is clear, as illustrated most recently by
21 December 2017). As has been noted, the process of judicial review as applied in
Ireland generally, and perhaps specifically in the field of international protection, is both a
flexible and powerful remedy. Decisions may be reviewed for legality, procedural error,
irrationality, proportionality, and compliance with and protection of rights under the
Constitution and the ECHR, rights under European Union law, and the rights protected by
the Charter. It is a necessary feature of any system of judicial review that the court is
not empowered to rehear issues and substitute its own findings of fact for those of the
deciding body. Furthermore, that limitation is intrinsic to any concept of judicial review,
and has the corresponding feature that in some cases review may be more extensive,
since a decision may be quashed for an error which was capable of being corrected on a
merits appeal. In any event, the law in this regard in Ireland must be regarded as
settled, and I am not persuaded that the relatively fragmentary allusions and references
raised by the applicants are sufficient to raise the sort of doubt that would require a
reference to the CJEU. That is particularly so in the context of an area of law, and a
series of decisions, which have already been at least indirectly the subject of two
references in the M.M. litigation. The function of national courts is to decide cases in the
light of the guidance provided by the CJEU. The procedure for a reference to the CJEU is
not an end in itself. For these reasons, I conclude that the applicants’ contention that
they were entitled to a form of appeal on the merits from a decision on an application for
subsidiary protection, itself necessarily following a hearing and appeal on the question of
Page 28 ⇓
refugee status, is incorrect. Nor can I accept the applicants’ contention that the decision
of the Upper Tribunal raises a sufficient doubt about the matter as to require this court to
make a reference to the CJEU under Article 267 TFEU. For reasons already addressed, the
position in Irish law is clear and has been recently and authoritatively clarified. The
relevant portion of the decision in Banger does not appear to me to be of sufficient weight
to cast doubt on something very well-established and of very wide application.
The refusal to admit fresh evidence in J.C.M.
80 Finally, it is necessary to address the argument advanced that Clark J. wrongly refused
to admit fresh evidence in the application for judicial review in J.C.M. This was evidence
about a further report about the position of failed asylum seekers in the DRC. It was
admitted that it post-dated the Minister’s decision by many years but was available at the
time of the judicial review application. I do not think this is in truth a separate ground of
complaint. It is rather an illustration of the point the applicants sought to make as to the
limitation of the judicial review process: that is, that the absence of a full appeal on the
facts meant that they could not refer to such material. However, this is merely a
consequence of the procedure for judicial review. Clark J. would only have been wrong to
refuse to admit the evidence if, contrary to the decision of this court, a full appeal on the
merits was required by European Union law. The decision does not mean that the
applicants could not deploy the information if it was really telling. It might, for example,
be the basis of an application to the Minister to reconsider the decision. In other
circumstances, it might have been relevant in the judicial review proceedings, or other
judicial review proceedings depending on the point formulated, but when it was sought to
be introduced as part of a de novo appeal to invite the court to decide that the Minister
was wrong on the merits, or indeed that subsidiary protection should now be granted to
the applicants , it was plainly outside the judicial review process and was correctly
excluded. It follows, for the reasons set out above, that the appeal against the refusal of
Clark J. to grant leave to seek judicial review on this point must be dismissed.
81 Finally, it will be apparent that this judgment has had to address a number of matters
raised in correspondence after the oral hearing of the appeal had concluded. I have dealt
with these issues in the judgment because they were capable of being disposed of and it
was undesirable to further delay the resolution of this case by further sequential hearings.
However, the process of communicating with this or any other court after a hearing has
concluded must be approached with some caution. Where a court invites the parties to
clarify a matter, there will of course be little difficulty. Similarly, a party may wish to
correct an incorrect statement of fact or law. However, more difficult issues arise when it
is sought to address matters of legal argument.
82 An appeal to this court is normally confined to identified points of law which have been
the subject of written decisions in the High Court, and often the Court of Appeal, and
which in turn will have been addressed in detailed written submissions and oral argument.
The application for leave to appeal, the written submissions, and the prior judgments, are
all publicly available, and the oral argument takes place in open court. The process
culminating in that hearing is not intended to be merely the opening act in a long-running
Page 29 ⇓
drama: as has been observed, like any trial, the hearing is the opening and closing night
of the show. Every litigant experiences what is sometimes called l’esprit d’escalier: the
thought that there is something more that could have been said, or said better or
differently, or some materials to which reference might usefully have been made. In a
system where new judgments are delivered daily, and where courts in other common law
countries often generate judgments on similar issues, it would indeed be surprising if the
necessary lapse of time between argument and judgment did not produce at least some
material, whether a decision in this jurisdiction or elsewhere, or commentary or other
authority, which could be said in some way to touch upon the matters addressed in the
hearing. These features are, however, not sufficient in themselves to justify
communication with a court which is not carried out in public or publicly available. The
fundamental justification for any post-hearing communication with a court on any
contentious issue is if the new matter is considered sufficiently significant as to affect the
outcome of the case, and which would require to be the subject of a further hearing and
argument, such as, for example, the delivery of a decision considered binding on the
court. If the parties are agreed on the significance of a matter, it may be put before the
court by agreement. If there is agreement about its significance but debate about the
particular impact, and it is considered that full argument is required, then this should be
communicated to the court with a request for a short hearing and directions as to the
delivery of written submissions and material. If the parties disagree, then the party
contending that a further hearing is required should bring such an application on notice to
the other party inviting the court to direct a hearing and seeking directions.
83 It must be obvious, however, that this is a matter upon which circumspection and
judgment is required to be exercised, particularly by parties with the benefit of legal
advice. It is undesirable that further issues and arguments as to substance should be
raised in correspondence, particularly in a case such as this which has seen a
considerable proliferation of issues during its extensive lifetime. In circumstances where
the judgment of the CJEU in Secretary of State for the Home Department v. Banger (Case
C-89/17) [2019] 1 CMLR 6 had been referred to in argument, it was appropriate to
draw the court’s attention to the decision of the Upper Tribunal on the interpretation of
that judgment and I am do not criticise the parties’ representatives in this case in any
way. It is important, however, that parties should not consider that the hearing of an
appeal is only one part of the process, and that there can be a further running
correspondence with the court outside of the public hearing. In the circumstances of this
case, it is not necessary to dwell on these matters further, and I touch on them now only
to provide guidance for the future.
84 For the reasons set out in this judgment, I would allow the Minister’s appeal in each case,
dismiss the applicants’ cross-appeals, and set aside the orders of the High Court quashing
the decisions of the Minister.