The High Court has refused E.D.’s application for judicial review of a decision not to consider her late application for subsidiary protection. Mr Justice Mac Eochaidh held that allowing a significantly late application was a matter for the Minister’s discretion and rejected the legal grounds she advanced.
E.D., a Ghanaian national, arrived in Ireland in April 2010 and sought asylum, saying she feared persecution by elders in her village who wanted her to serve at their shrine. Her asylum claim was rejected by the Refugee Applications Commissioner and the Refugee Appeals Tribunal, which found her account not credible.
In February 2011, the Minister sent E.D. a “three options” letter, including the option to apply for subsidiary protection. Through the Refugee Legal Service, she instead sought humanitarian leave to remain. A deportation order was later issued. In October 2013, her new solicitors asked the Minister to revoke that order and consider a subsidiary protection application, raising concerns that E.D. had not understood the earlier advice or its implications. The Minister refused on 5 November 2013, citing the time limit and the two-and-a-half-year delay.
E.D. argued that European Union law entitled her to apply and that the 15-working-day limit treated subsidiary protection claims less favourably than asylum claims, for which she said there was no equivalent time limit. She also argued that the refusal was disproportionate and inadequately reasoned. The Minister’s position was that the regulations set the applicable deadline and any acceptance of a late application was discretionary.
The judge found that the 2006 regulations required an application within 15 working days of the relevant notification. He said a delay of a few working days might be excusable, but delays of months or years would mean losing the opportunity unless there was a very good explanation. He also noted that E.D. had legal advice during the process and said he had no doubt she was advised about whether to apply.
The court rejected the equivalence argument, finding asylum and subsidiary protection were linked forms of protection governed by EU law and that their time limits did not put subsidiary protection applicants at a disadvantage. It also rejected the challenges based on proportionality and the adequacy of the Minister’s reasons. The court refused the reliefs sought; it did not grant an order quashing the Minister’s decision.