The Supreme Court allowed the Minister’s appeals in three subsidiary protection cases, set aside the High Court orders quashing the refusals, and dismissed the applicants’ cross-appeals. The court did not itself decide that any applicant should be deported; its judgment concerned challenges to decisions refusing subsidiary protection under the former system.
The cases concerned V.J., M.L. and J.C.M., whose asylum claims had been refused before the Minister considered their applications for subsidiary protection. The applicants challenged aspects of the process used under the 2006 Regulations, including the fact that subsidiary protection was considered after the asylum decision, the use of credibility findings from the asylum process, and the absence of an oral hearing.
The High Court had quashed the Minister’s decisions in all three cases on an oral-hearing ground, and in M.L. and J.C.M. also on the basis that adverse credibility findings carried over from the asylum process created a negative impression. The Supreme Court said its later ruling in a separate case, M.M., established that a written process could be lawful if sufficiently flexible to let an applicant make their case. An interview may be needed in specific circumstances, but the court found the cases of M.L. and J.C.M. did not require one. Their claims, including a concern raised by J.C.M. about treatment as a failed asylum-seeker, could be assessed using the available written material.
The court rejected the argument that the two-stage process was inherently unfair. It said refugee status and subsidiary protection are distinct forms of protection, and EU law did not prevent refugee status being considered first. Although the former system was cumbersome and subject to delay, the applicants had not shown that the delay or the timing of their applications caused them prejudice warranting the decisions being quashed. The court also found no basis to treat the Minister’s consideration of deportation after refusal of refugee status as proof of partiality.
On the appeal-mechanism issue raised by M.L. and J.C.M., the court held that Irish judicial review provided an effective remedy under EU law. It rejected the claim that EU law required a full appeal on the merits. It also upheld the refusal to admit later country information in J.C.M.’s judicial review: the material could not be used to turn that process into a fresh merits appeal, though the judgment said it might support an application to the Minister to reconsider.
The judgment was delivered by O’Donnell J. on 31 October 2019. The Supreme Court allowed the Minister’s appeals, dismissed the applicants’ cross-appeals and set aside the High Court orders that had quashed the Minister’s decisions.