The High Court has refused all relief sought by Mr E in a challenge to a negative recommendation on his application for subsidiary protection. The court rejected his arguments that the decision-making process was affected by objective bias, breached a legitimate expectation, or involved an unlawful failure to disclose fingerprint data.
Mr E applied for refugee status in September 2012. The Refugee Applications Commissioner later relied on a purported Eurodac fingerprint match with prints taken in France in 2007 when recommending that he not be declared a refugee. The Refugee Appeals Tribunal affirmed that decision in November 2013. Mr E disputed the match and later sought disclosure of the fingerprint data. An earlier judicial review of refusals to disclose it was dismissed as premature.
After the International Protection Act 2015 took effect, responsibility for his subsidiary protection application transferred to the Chief International Protection Officer (CIPO). In March 2018, CIPO said it would conduct a fresh investigation with new personnel and without reference to the purported match. CIPO said the Eurodac material had been removed from Mr E’s file, though material referring to it remained. The judgment noted that his lawyers had distinguished between the fingerprint material and references to it in correspondence.
Mr E attended an interview on 29 March 2018. CIPO said the interview placed him in a position comparable to a party who had accepted a decision-maker’s participation despite concerns. The judge did not decide that point, saying it was unnecessary to do so. The judgment recorded that the interviewer did not refer to Eurodac material. CIPO issued a negative recommendation on 11 July 2018 based on separate adverse credibility issues.
Mr E sought to have that recommendation quashed and to compel disclosure of fingerprint data held or obtainable by the respondents. The court found no objective bias: CIPO had undertaken not to rely on the Eurodac material, it was not raised at interview, and the recommendation contained no analysis or finding about it. The court also rejected the legitimate-expectation claim, finding no basis to expect CIPO to remove every reference to Eurodac after it said the Eurodac material itself had been removed.
On disclosure, the court said the relevant material was required to be deleted in 2017 under the then-applicable Eurodac Regulation. It found no public duty that CIPO had wrongfully refused to perform and no excessive delay that could amount to refusal. The court therefore refused all relief. It also said the material before it did not suggest a breach of the respondents’ duty of candour.