Irish subsidiary protection regulations requiring prior asylum refusal upheld as valid EU implementation method.

Neutral Citation Number: [2010] IEHC 489

THE HIGH COURT

JUDICIAL REVIEW

2009 1019 JR

BETWEEN

H. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT OF MR JUSTICE RYAN, delivered on the 15th December 2010

1. EU Council Directive 2004/83/EC provides for applications for subsidiary protection for persons who are not entitled to refugee

status but who are nevertheless at risk of serious harm. The State implemented the Qualification Directive, as it is known, by S.I. 518

of 2006. These regulations provide that subsidiary protection may be sought by a person whose application for asylum has been

refused. They do not allow for an independent application so a person has to apply for asylum before seeking subsidiary protection.

2. The applicant wants to apply for subsidiary protection without going through the asylum process. He accepts that he is not a

refugee because he does not fear persecution for a Convention reason but he claims that he does qualify for subsidiary protection. If

he is obliged to claim refugee status before seeking what he believes he is really entitled to, he will be making a false claim and will or

may suffer prejudice. The applicant objects to this.

3. The applicant's case is that he should not have to go through this charade. He claims that the Irish regulations are in conflict with

the EU directive. He obtained leave to bring judicial review proceedings by order of this Court in the following terms:

1. The first named respondent has failed to consider the exercise of his discretion pursuant to Regulation 4(2) of the EC

(Eligibility for Protection) Regulations, 2006 (S.I. 518 of 2006) to accept the applicant’s application notwithstanding that

the applicant is not a failed asylum seeker;

2. Regulation 3(1) and Regulation 4(2) of the EC (Eligibility for Protection) Regulations, 2006 (S.I. 518 of 2006) are

unlawful and ultra vires the provisions of the European Communities Act, 1972 (No. 27 of 1972) and Council Directive

2004/38/EC insofar as and to the extent that they provide that the first named respondent is entitled to refuse to

consider the application for subsidiary protection of a person who is not a failed asylum seeker;

3. The applicant is not entitled to work unless his application for subsidiary protection is successfully determined. The

applicant will sustain loss and damage waiting for a futile application for asylum to be refused should he be obliged to

make such an application.

4. The applicant claims a declaration that Regulation 3(1) and Regulation 4(2) of the 2006 Regulations are unlawful and ultra vires the

European Communities Act, 1972 and the Qualification Directive. He is seeking orders of mandamus and certioari arising out of the

decision by the Minister to refuse to consider his application for subsidiary protection.

Facts

5. The applicant is a national of Pakistan. He entered the State pursuant to a student visa in 2003. He married an Irish national in

2004, and was granted permission to remain in the State until 2005. Following the break-down of his marriage, this permission was not

renewed. On 23 February 2006, the applicant was informed that the first respondent proposed to deport him. The applicant did not

make a claim for asylum at any time, however, on 10 July 2009 he applied for subsidiary protection under the European Communities

(Eligibility for Protection) Regulations, 2006. On 27 July 2009, the first respondent informed the applicant that only a person who has

been refused refugee status can apply for subsidiary protection.

E.C. (Eligibility for Protection) Regulations 2006

6. The purpose of the EC (Eligibility for Protection) Regulations, SI 518 of 2006 is to give effect to the Qualification Directive. The

relevant regulations are as follows.

Regulation 2 defines a person eligible for subsidiary protection as one

(a) who is not a national of a Member State,

(b) who does not qualify as a refugee,

(c) in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to

this or her country of origin, would face a real risk of suffering harm as defined in these regulations.

Regulation 3(1) provides that:

Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as “protection

decisions”) made on or after the coming into operation of these Regulations:

(a) a recommendation under section 13(1) of the 1996 Act;

(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

(c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a

person to whom subsection 2(f) of that section relates;

(d) a determination by the Minister under Regulation 4(4) or 4(5).

Regulation 4 (2) states:

The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom

section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).

Section 3 of the Immigration Act, 1999, referred to in Regulation 4(2), states, intera alia:

(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent

provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-

national specified in the order to leave the State within such period as may be specified in the order and to remain

thereafter out of the State.

(2) An order under subsection (1) may be made in respect of –

…

(f) a person whose application for asylum has been refused by the Minister

Submissions

7. The applicant submits that the EC (Eligibility for Protection) Regulations 2006 do not properly transpose the Qualification Directive

into Irish law as they prevent an application for subsidiary protection being made by a person who is not a failed asylum seeker. On

the facts of this case, the applicant submits he is not eligible for refugee status as he does not fear persecution on the grounds set

out in the Geneva Convention but he is, however, in need of international protection.

8. The applicant argued that the Qualification Directive does not limit subsidiary protection to failed asylum seekers. In support of

this, his counsel Mr O’Reilly SC cited Recitals 24, 25 and 26 of the Directive. Recital 24 states:

…Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva

Convention.

Recital 25 states:

It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as

eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights

instruments and practices existing in Member States.

Recital 26 states:

Risks to which a population of a country or a section of the population is generally exposed do normally not create in

themselves an individual threat which would qualify as serious harm.

9. Counsel also relied on the travaux préparatoires of the Qualification Directive and, in particular, the Commission Proposal for the

Directive (O.J. C 51E, 26.2.2002), the Opinion of the Economic and Social Committee (O.J. C221, 17.9.2002) and a Report from the

Commission to the Parliament (COM (2010) 314, Brussels 16.6.2010). He argued that an objective of the Commission Proposal is to

prevent the abuse of asylum applications and requiring a person to apply for asylum in circumstances where he cannot qualify as a

refugee would breach this objective. The applicant further relied on the Proposal’s description of subsidiary protection as a

“supplementary status” and the definition of an application for international protection as a request by a third country national for

protection on the grounds that s/he is a refugee “or” a person in need of subsidiary protection.

10. Finally, the applicant cited European Court of Justice Case C-465/07 Elgafaji v Staatssecretarias Van Justitie [2009] ECR I – 921,

for the proposition that the criteria for subsidiary protection are wider than those that apply to the grant of refugee status. The

applicant submitted that as the criteria differ, an application for subsidiary protection can exist separately and apart from an

application for refugee status.

11. The respondent submitted that the Regulations conform to the Directive and the applicant is not entitled to apply for subsidiary

protection unless, intera alia, he has first failed to qualify as a refugee. In support of this argument, the respondent relied on Article

2(e) of the Directive, which states that:

[a] person eligible for subsidiary protection» means a third country national or a stateless person who does not qualify as

a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if

returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual

residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do

not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country

The respondent submitted that the key phrase of Article 2(e) is a “person who does not qualify as a refugee”. This phrase has a

community meaning and should be read in conjunction with variations of the phrase in Articles 4, 23, 25 and 32 of the Procedures

Directive (Council Directive 2005/85/EC), such that the question of ‘qualification’ is to be determined after an examination by a

competent authority and is not to be determined by an individual applicant of his own accord. The respondent argued that Article 5.2

of the Commission Proposal had contained a ‘stand-alone’ right to apply for subsidiary protection independent of an application for

asylum but it was removed in the final adopted version of the Directive. This was confirmation that the Directive was not intended to

include such a right.

12. Finally, the respondent cited Izevbekhai v Minister for Justice Equality and Law Reform (Unreported, Supreme Court, 9 July 2010)

where Fennelly J. stated that Regulation 4(2) of the 2006 Regulations has the effect that “the Minister is not obliged to consider an

application for subsidiary protection from any person other than one to whom that provision applies.” It was submitted therefore, that

the respondent has no discretion to accept an application from the applicant in circumstances where he is not a person whose

application for asylum has been refused by the Minister.

Analysis

13. The debate in this case is essentially a theoretical one. The applicant is free to apply for subsidiary protection; the only question

is whether he makes that in the first instance or whether he has to go through the process of applying for asylum and being refused

before he makes his case for subsidiary protection. Whichever interpretation of the debate is correct, the applicant is in a position to

make a case for subsidiary protection. In these circumstances, it is questionable whether it is legitimate to use judicial review for the

purpose of establishing who is correct in an exegetical debate about the E.U. Directive.

14. As to the issue in contention, it seems to me that, while there is something to be said for each side, the respondents’ argument is

more correct. Both sides are in agreement that there is a choice of the mode of implementation of the Directive. If the option chosen

by the State is among the legitimate ways of implementing it, the applicant cannot succeed. He would have to show that the choice

made by the State was not permitted by the Directive or that the Regulations failed to do something that the Directive mandated. If

the furthest the applicant can put the case is that the Directive permits a different way of doing it, that is not enough. Indeed, it is

not sufficient for him to show that the Directive envisages a different way of doing it. Unless he establishes that the mode adopted

by the Regulations is not in accordance with the Directive, either by doing something in a way that the Directive does not permit or

by failing to do something that the Directive requires, he cannot succeed. On this issue, my view is that the Regulations have

adopted a mode of implementing the Directive that is legitimately within its terms and consistent with its meaning. It may not be the

only way but that does not invalidate it. The fact that the Commission’s original proposal for an independent application was not

adopted reinforces this interpretation.

15. Whatever view one takes about the debate, the worst prejudice that can be claimed by the applicant to arise out of the alleged

misapplication of the Directive by the State is that he has got to apply first for asylum before moving on to his real case, as he says,

which is subsidiary protection. He says that this means he is making a false application or an untruthful application or even a

fraudulent application. I think this apprehension is unfounded. There is nothing to stop him accompanying his application with a letter

from his solicitor setting out the true position as he maintains; there is nothing to stop him giving evidence in accordance with the

truth as he knows it; there is nothing to stop him making it quite clear that he is proceeding in this way because it is the required and

only means by which he can make his real case.

16. My conclusion accordingly is that the applicant is not entitled to the orders sought by way of judicial review.