The High Court refused an applicant leave to seek judicial review of both a refusal of subsidiary protection and a deportation order, finding she had not made out grounds for leave in respect of either decision.
The application sought to quash the Minister’s decision of 28 March 2011 refusing subsidiary protection and a deportation order dated 21 April 2011. It also sought an injunction against deportation and declarations concerning the protection process, available remedies and the governing law. The court was considering whether the applicant could proceed with judicial review, not deciding a full judicial review challenge. The judgment records different leave thresholds: a stateable case for the subsidiary protection decision and substantial grounds for challenging the deportation order.
The applicant argued that the State had failed to cooperate with her when assessing subsidiary protection, as required by the EU Qualification Directive. She said she had not been given an opportunity to respond to material relied on in the refusal. The court rejected the argument as general and theoretical: counsel had identified no specific information in her case that she could have answered or contradicted.
The judge agreed with earlier High Court decisions that the Directive’s cooperation requirement did not create a general duty to conduct the entire assessment through dialogue or to provide a draft decision for comment. The court also said that a referral to the Court of Justice of the European Union by another judge did not itself justify granting leave.
The applicant also challenged the absence of an appeal from a subsidiary protection refusal and argued that the deportation decision was disproportionate, among other grounds. The court rejected the remedy and equivalence arguments, and found several objections to the deportation decision were assertions unsupported by specific facts or arguments. It noted that the file consideration report addressed the impact on family life.
During argument, the applicant raised female genital mutilation. The judge said it had not been part of her case in the asylum process, the subsidiary protection application or her humanitarian leave application, and the Minister was not required to consider it on the material presented.
The court’s operative conclusion was that the applicant had not made out grounds for leave in respect of either decision. The judgment therefore refused permission to bring the proposed judicial review; it did not quash the subsidiary protection refusal or deportation order.