The High Court has refused a Somali man’s application for judicial review of the Minister for Justice’s refusal to process his subsidiary protection application, ruling that the Minister had no power to accept it under the applicable regulations.
Mr Justice Barr held that the man’s notification of an intention to deport him was issued on 13 February 2006, before the European Communities (Eligibility for Protection) Regulations 2006 came into force on 10 October that year. Under the regulations, as interpreted by the Supreme Court in Izevbekhai v Minister for Justice, applicants in his circumstances were not eligible to apply for subsidiary protection.
The man, identified in the judgment only as A.A., arrived in Ireland in or around May 2005 and applied for asylum. His asylum claim was rejected in January 2006. He later received permission to remain, which had been extended several times and was due to continue until 13 May 2015.
After learning of the subsidiary protection process, he applied in June 2013. The Minister initially refused to consider the application on the basis of Recital 9 of the EU Qualification Directive, which addresses people permitted to remain on discretionary humanitarian or compassionate grounds. The Minister later abandoned that explanation in the judicial review proceedings and argued instead that the regulations gave her no discretion to accept an application from someone whose deportation notification came before the regulations took effect.
A.A. argued that the Minister could not replace the original reason for refusing his application after proceedings began. He also said that the authorities had failed to tell him after October 2006 that he could apply, and should therefore be prevented from arguing that his application was out of time. The judge rejected the latter submission, finding that the regulations did not cover people notified of an intention to deport before their commencement.
Mr Justice Barr said the Minister had acted beyond her jurisdiction by considering the application, making the decision void and of no effect. However, he concluded that quashing it would be futile: the court could not order the Minister to accept and consider an application that the regulations did not permit. He allowed the Minister to advance the jurisdiction argument, while noting that the change from the original reason could be reflected in the costs order.
The court refused certiorari, which would have quashed the Minister’s decision, and refused mandamus, which would have required her to consider the application. The judicial review application was rejected and the reliefs sought were refused. The judgment does not determine whether A.A. qualified for subsidiary protection on its merits.