The High Court has refused S. L.’s application for judicial review challenging Ireland’s procedures for deciding applications for subsidiary protection.
In a judgment delivered on 6 October 2011, Mr Justice Cooke held that the 2006 Regulations did not contain the alleged “structural flaw” and that there had been no deficiency in the transposition of the relevant European Union directives.
S. L.’s challenge followed a refusal of his application for refugee status and a letter proposing his deportation, dated 21 January 2011. He then applied for subsidiary protection on a “without prejudice” basis, while challenging how such applications were handled. At the hearing, the Minister had not yet decided that application.
The applicant argued that the Minister had not been formally designated as a “determining authority” under the Procedures Directive. He also relied on the fact that refugee status applications and subsidiary protection applications were handled through separate procedures. Unlike the refugee process, the subsidiary protection procedure involved an application to the Minister alone and, the applicant argued, offered no first stage decision by a separate determining authority or appeal against refusal.
The court rejected that argument. It found that the Procedures Directive set minimum procedural standards for asylum applications, while allowing, but not requiring, Member States to apply those standards to other forms of international protection. Ireland had not adopted a single procedure combining asylum and subsidiary protection, and the court found no obligation under EU law to do so.
The judge also said that, even if a designation were required, Regulation 4 of the 2006 Regulations made the Minister the authority to whom subsidiary protection applications were made and the person who determined eligibility. The court concluded that the Regulations were valid and that no “structural flaw” had been established.
The only order recorded in the judgment was the refusal of the judicial review application. It did not determine S. L.’s pending subsidiary protection application.