The year saw significant litigation in the Irish High Court relating to Ireland’s transposition of Council Directive 2004/83/EC. In 2007, in H & D v Minister for Justice, Equality and Law Reform,139 J Feeney held that while
people in respect of whom deportation orders are made after 10 October 2006 have an automatic right to apply for subsidiary protection, Regulation 4(2) gave the Minister a discretion to consider applications for subsidiary protection from other applicants, that such applicants, who had been issued with deportation orders before 10 October 2006, did not have an automatic right to apply for subsidiary protection under the Directive, but that for the Minister reject such applications without regard to that discretion would be in breach of the Minister’s obligations. This ruling gave rise to further litigation in 2008, most notably in N & Anor v Minister for Justice Equality and Law Reform140 and Gavrylyuk & Bensaada v The Minister for
Justice, Equality and LawReform.141
In N & Anor v Minister for Justice Equality and Law Reform the Nigerian national applicants were failed asylum seekers who subsequently applied for subsidiary protection. The Minister refused their applications and they sought to quash those decisions by way of review. The applicants argued that subsidiary protection was a right under EU law and Directive 2004/83/EC and not a matter of Ministerial discretion, and that they were therefore entitled to a consideration of their claims for subsidiary protection in a manner divorced from the Irish domestic legislation of the
135EU Commission (July 2008) ‘EU Commission welcomes Metock case clarification on
free movement of citizens by ECJ’. Press Release.
136The Irish Times (26 July 2008) ‘Residency refusal to 1,500 non-EU spouses for review’;
RTE News (26 July 2008) ‘EU overturns Irish residency laws’.
137RTE News (25 September 2008) ‘Large number of ‘sham marriages’ uncovered’ 138 Ibid.
139 Unreported, High Court, 27 July 2007 [2007] IEHC 277. 140 [2008] IEHC 107 High Court, Charleton J. 24/04/2008.
Refugee Act, 1996. The Court refused the relief sought, holding that an applicant for subsidiary protection must, as a matter of law, have already ventilated the facts and circumstances regarding the claimed risk of persecution, and that it is only upon rejection of such a claim that applicants are entitled to make an application for subsidiary protection. The Court said that the primary focus in such an application is any risk to which an applicant alleges he or she would be subject if returned, considered in the light of the situation in terms of peacefulness and the functionality of ordinary protection of that country. The Court stated that a primary question in considering an applicant’s claim for subsidiary protection should be whether what is contended for is new, or has already been the subject of an asylum determination. The Court held that if substantially new material is put forward it must be given a fair and reasoned consideration, and that nothing in Directive 2004/83/EC requires that the decision making process as to whether a non-citizen is entitled to subsidiary protection should be the same as that for refugee status.
In Gavrylyuk & Bensaada v The Minister for Justice, Equality and Law Reform the applicants had been refused asylum and had also been refused leave to remain and were issued with deportation orders before 10th October 2006, the date on which the provisions of Council Directive 2004/83/EC were transposed into Irish domestic law by S.I. No 518 of 2006. Following the transposition of the Directive, they then applied for subsidiary protection. The Gavrylyuks, who were Ukrainian citizens, claimed that they would be subjected to inhuman or degrading treatment in the Ukrainian penal system, and furnished country information stating, inter alia, that detention facilities in Ukraine likely reached the threshold of Article 3 of the ECHR. Mr Bensaada, an Algerian citizen, claimed that he would be subjected to inhuman or degrading treatment and torture in Algeria by the (non-State) GIA who had already tortured him, and provided a new SPIRASI medico- legal report confirming that he had been tortured, and made submissions, inter alia, arguing that he feared serious harm pursuant to Article 15 of Council Directive 2004/83/EC. In considering whether Mr Bensaada was at risk of torture before originally recommending, in 2004, that he be deported, the Repatriation Unit of the Department of Justice had stated that while Mr Bensaada was a victim of torture, it was important to note that the torture was carried out by non-State agents.
The Minister had refused to exercise his discretion to consider subsidiary applications made by the applicants, in respect of whom deportation orders had been signed and notified prior to the transposition of the 2006 regulations, for the stated reason that the applicants had failed to identify altered circumstances which would lead to them being at risk of suffering serious harm. The applicants sought to challenge the Minister s refusal by way of judicial review on three grounds: (a) that the Minister s interpretation of the decision of Feeney J. in H & D (see above) was erroneous in that by limiting the discretion exercised to consideration of whether there were changed or altered circumstances the Minister had misinterpreted the ratio of the H & T decision, adopted an inflexible rule and had fettered his discretion, (b) that there was unfairness or discriminatory treatment in that the Minister had allowed a group of people in respect of whom deportation orders had been made but who had not been notified of this fact, to make an application for subsidiary protection, and (c) that even if the Minister was correct in his interpretation of the decision in H & D, he had failed to give adequate consideration to submissions made in respect of changed circumstances. The applicants
contended that in H & D Feeney J was merely setting out a number of indicative criteria as to when the Minister might chose to exercise his discretion, while the Respondent contended that the exercise of the Minister s discretion under Regulation 4(2) was limited to situations where the applicants show new facts or circumstances.
The Court refused certiorari in respect of Mr and Mrs Gavrylyuks applications, but granted certiorari in respect of Mr Bensaada’s application. The Court held that he Minister’s, and not the Applicants, interpretation of the law was correct, and that the Minister had not acted unfairly in drawing the distinction that he did between applicants generally and those who had not yet been notified of extant deportation orders made before the transposition the 2006 regulations, had pursued a legitimate aim designed to achieve fairness and to promote confidence in the system. With regard to the claim that the Minister had failed to give adequate consideration to the criteria he said he was applying, i.e., whether there were changed circumstances, the Court against the Gavrylyuks, but found in Mr Bensaada’s favour. The Court noted that Feeney J had indicated three non- exhaustive examples of changed circumstances: (a) where an applicant’s position is affected by a change in the definition of serious harm, (b) where altered personal circumstances have arisen, and (c) where conditions in the country of origin have changed. The Court noted, inter alia, that the Minister’s letter informing Mr Bensaada of the possibility of applying for subsidiary protection referred only to the latter two of these possible scenarios, and held that the Minister failed to have sufficient regard to the changed definitions of serious harm and torture, pursuant to Article 15 of the Directive, in circumstances where the applicant had, in fact, been subjected to torture.