The High Court has refused a family’s application for judicial review of a decision not to consider their request to apply for subsidiary protection. The court held that the material they submitted did not show a significant change in circumstances since deportation orders were made in 2005.
The applicants are a mother and her two minor daughters. Their identities are anonymised in the judgment. They entered Ireland in January 2005 and sought refugee status, saying the mother feared that her husband’s family would subject the girls to female genital mutilation (FGM) if they returned to Nigeria. The judgment records that the mother’s eldest daughter died in 1994 from haemorrhage associated with FGM.
Their asylum application was refused, and deportation orders were signed on 23 November 2005. A challenge to those orders was later rejected by the High Court. In March 2008, the family asked the Minister for Justice to use a discretion under the European Communities (Eligibility for Protection) Regulations 2006 to let them apply for subsidiary protection. The Department refused, saying there were no grounds to exercise that discretion. The High Court granted leave to challenge the refusal and an injunction preventing deportation while the judicial review was pending.
The family argued that new documents supported their claim, including evidence from a doctor who had worked in Nigeria, material from an NGO, affidavits from people in Nigeria, country information, and letters referring to a relative who was reportedly subjected to FGM during a visit to Nigeria. They said the Minister had failed to engage properly with the evidence, give adequate reasons and consider the risk of serious harm. They also argued that officials had unlawfully restricted the Minister’s discretion by requiring proof of altered circumstances.
The Minister argued that the documents were similar in content to material previously considered and that Regulation 4(2) did not give the family an automatic right to have a subsidiary protection application considered. The Minister’s position was that the discretion could be exercised where applicants identified new facts or changed circumstances arising after deportation orders were made.
Mr Justice Brian McGovern accepted that the Minister’s role at this stage was limited to considering the representations and notifying the applicants of the decision. He found that the further material amplified or corroborated the family’s existing case but did not establish new facts or altered circumstances. The judgment also noted that an earlier challenge had addressed information about the eldest daughter’s death and found it did not amount to a significant change in circumstances.
The court held that the family had no automatic right under Regulation 4(2) to be considered eligible to apply for subsidiary protection. It rejected the claims that the decision was irrational, inadequately reasoned or based on an unlawful fettering of discretion, and refused the judicial review application. The ruling concerned the refusal to admit a subsidiary protection application for consideration; it was not a fresh determination of the underlying protection claim.