The High Court dismissed S.H.M.’s application for a declaration that the Minister for Justice and Equality had to consider a second, standalone application for subsidiary protection. It also refused a declaration that he could not be removed from the State while that application was pending.
Mr Justice Richard Humphreys gave judgment on 21 December 2015 in judicial review proceedings. The court held that a second application for subsidiary protection could be considered only through an application to re-enter the asylum and protection process under section 17(7) of the Refugee Act 1996. S.H.M. had no live section 17(7) application when he brought the proceedings.
S.H.M., who arrived in Ireland from the Democratic Republic of Congo in October 2006, had his asylum application rejected in 2007 and his subsidiary protection application refused in 2011. A deportation order was made in July 2011. He applied in July 2012 to have it revoked and, on similar grounds, sought readmission to the protection process. The revocation application remained undecided; his readmission application was refused in August 2012, and a review was refused the following month.
In August 2014, he made a second subsidiary protection application to the Minister and the Refugee Applications Commissioner. The Commissioner declined to process it without ministerial consent. The Minister’s position, repeated in correspondence, was that a second application could be considered only in the context of a section 17(7) application.
The applicant argued that EU principles of equivalence and effectiveness entitled him to a separate route back into the subsidiary protection process. The judge rejected that argument, finding that the statutory process provided equivalent criteria and that the need to consider asylum readmission first did not make the procedure ineffective. He also found no significant change in circumstances since the applicant’s earlier readmission application that would support a new application.
The court separately held that the proceedings gave S.H.M. no legal right to remain in the State. It said there was no basis for such a right under EU or domestic law on the circumstances presented.
The court released the Minister from the undertaking not to deport S.H.M. insofar as it related to his claim for readmission or to the proceedings. However, the judge said deportation before deciding the outstanding section 3(11) application to revoke the deportation order appeared inappropriate. He observed that its stated ground could amount to a significant change in circumstances requiring express consideration, and that failure to decide it could provide grounds to seek an injunction. The matter was adjourned for any consequential applications, with prior written notice required from a party intending to make one.