The Supreme Court has ruled that the Minister for Justice has discretion to consider subsidiary protection applications from three appellants whose deportation notifications predated the 2006 regulations. The Court said the Minister is not obliged to consider their applications and that the appellants have no right to have them considered.
The judgment, delivered by Denham J on 9 July 2010, addressed a preliminary issue about the meaning of Regulation 4(2) of the European Communities (Eligibility for Protection) Regulations 2006. It did not determine whether the appellants qualified for subsidiary protection. The judgment says the substantive case raised a risk of female genital mutilation affecting the minor appellants, but that issue was not before the Court for decision on this preliminary question.
The appellants were Enitan Pamela Izevbekhai and her minor daughters, Naomi Alero Izevbekhai and Jamima Temisanre Izevbekhai. They argued that the Directive required Member States to grant subsidiary protection to eligible people and that the Minister should be able to consider applications from people already subject to deportation procedures before the regulations took effect. The Minister argued that neither the Directive nor the regulations permitted an application in their circumstances.
The regulations came into operation on 10 October 2006. The Court noted that Regulation 4(2) says the Minister “shall not be obliged to consider” an application from someone outside the specified category. Denham J found that this wording distinguished between applications the Minister must consider and others the Minister is not required to consider. It did not exclude the latter from consideration altogether, and therefore left the Minister discretion.
The Court also referred to Regulations 3(1)(d) and 4(4) and (5), which provide for ministerial decisions on subsidiary protection after the regulations came into force. It concluded that the Minister could consider the appellants’ applications under Regulation 4(2), then determine whether they were eligible. The Court said this interpretation was consistent with the Directive and involved no retrospective application of the regulations.
The appeal concerned the construction of national regulations and a confined group of people with deportation orders made before 10 October 2006. The Supreme Court answered the preliminary issue by confirming the Minister’s discretion. It did not direct the Minister to consider the applications or decide their merits.