Ireland - High Court, 18 May 2011, M.M.v Minister for Justice Equality and Law Reform 2011 No. 8 J.R.

Country of Decision:
Country of Applicant:
Date of Decision:
18-05-2011
Citation:
2011 No. 8 J.R.
Court Name:
High Court (Hogan J.)
National / Other Legislative Provisions:
TFEU
TFEU - Art 267
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Headnote: 

This Judicial Review concerned the way in which the Minister for Justice should assess applications for subsidiary protection and, in particular, whether the duty to ‘co-operate’ with the applicant  referred to in Art 4.1 of the Qualification Directive 2004/83/EC means that the decision maker must communicate matters of concern to the applicant before making a final decision. As there appeared to be a conflict between the Irish and Dutch interpretations of Art 4.1, and uncertainty as to the true meaning of the phrase ‘in co-operation with’ the Court (Hogan J) referred a question to the CJEU.

Facts: 

The applicant in this case was from Rwanda and sought asylum in Ireland in 2008. He was at that time a Masters (LLM) student here with a study visa. His refugee application was refused by the Minister for Justice on the basis that his account of what had happened to him in Rwanda was found not to be credible both by the Refugee Applications Commissioner, at first instance, and by the Refugee Appeals Tribunal on appeal. The applicant then applied to the Minister for subsidiary protection under the terms of the EC (Eligibility for Protection) Regulations 2006. Several months later, the Minister refused this application relying heavily on the negative decisions of the Commissioner and the Tribunal and also on new country of origin information on Rwanda sourced by his own office (the Irish Naturalisation and Immigration Service). There was no communication at all with the applicant during the course of the assessment and determination of his subsidiary protection application and he was unaware of the country of origin information upon which the Minister relied. 

The applicant obtained the leave of the High Court (Cooke J.) to challenge the Minister’s subsidiary protection decision by way of Judicial Review. The applicant’s challenge was based on Art 4.1 of Council Directive 2004/83/EC (incorporated in Ireland by the 2006 Regulations) and, in particular, the reference to the decision maker acting “in cooperation with the applicant” in assessing the relevant elements of the application. The Applicant argued that Art 4 imposed a duty on the Minister to communicate with him and put matters to him during the course of the assessment of his subsidiary protection application. Specifically, he argued that in the event of a proposed decision adverse to him, this duty of cooperation meant that the Minister was obliged to supply him with a draft decision in advance for his comments.
 

Decision & Reasoning: 

In its judgment on the substantive application, the Court (Hogan J.) referred to a previous judgment of the High Court in Ahmed v. Minister for Justice, Equality and Law Reform, (Unreported, High Court, Birmingham J. 24 March 2011) in which the Court had found that Art 4 imposed no duty of communication with applicants on the Minister. Hogan J. pointed out that although the judgment in the Ahmed case was not strictly binding, the established practice was that previous judgments of courts of coordinate jurisdiction should be followed. However, Hogan J. also considered a 2007 decision of the Administrative Jurisdiction Council of the Dutch Council of State (Raad von State) in which it had been held that the Dutch authorities are obliged to inform applicants of the results of the assessment of their applications before a final decision is made in order to facilitate applicants in addressing elements that might give rise to a negative decision. In circumstances where there appeared to be such a difference in the interpretation of the same provision of a Directive, the High Court decided, pursuant to the provisions of Art 267 TFEU, to refer a question to the Court of Justice of the European Union in the following terms:

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 to such applicant 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?
 

Outcome: 

Reference to the Court of Justice of the European Union. The substantive proceedings were stayed pending the outcome of the Reference. 

Subsequent Proceedings : 

Reference to the Court of Justice of the European Union. The substantive proceedings were stayed pending the outcome of the Reference. 

Observations/Comments: 

Rather than a unified procedure and a single application for protection, the Irish system involves separate and discrete applications for refugee protection and for subsidiary protection which are processed one after the other. The procedures for assessing the two applications are quite different. There is no interview or oral hearing involved in the subsidiary protection application, nor is there any appeal in relation to the decision. Also, any new information upon which subsidiary protection decision maker (the Minister for Justice) intends to rely in determining the subsidiary protection application does not have to be put to the applicant as it does in the refugee assessment process. As well as the Art 4.1 ‘co-operation’ issue identified in this case, there are also other issues arising in relation to fair procedures and equivalence of procedures between subsidiary protection applications relating to serious harm and indiscriminate violence which are effectively governed by the Qualification Directive and refugee applications relating to persecution for a 1951 Convention ‘reason’ which are governed by the Refugee Act, 1996.     

Case Law Cited: 

Ireland - Ahmed v. Minister for Justice, Equality and Law Reform, (Unreported), High Court, Birmingham J. 24 March 2011