Judgment: 2020-02-27 · Court archive

Court of Appeal dismisses 10 appeals over subsidiary protection refusals

The court rejected arguments that the former two-stage system breached applicants’ rights, finding no basis to overturn the High Court’s dismissals or refer questions to the EU court.

Court of Appeal · [2020] IECA 184

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court rejected arguments that the former two-stage system breached applicants’ rights, finding no basis to overturn the High Court’s dismissals or refer questions to the EU court.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The appellants argued that their right to be heard was breached because there was no appeal against subsidiary protection refusals and because the Minister had not shown them country-of-origin information relied upon. The court rejected that argument. It said the absence of an appeal, by itself, did not invalidate the decisions, and the appellants had not identified exceptional circumstances requiring an interview or an opportunity to comment on the information.

The Court of Appeal has dismissed 10 appeals brought by people whose applications for subsidiary protection were refused under Ireland’s former asylum system. The appellants had challenged the decisions through judicial review, and the High Court had dismissed their cases.

The appeals concerned the system under the European Communities (Eligibility for Protection) Regulations 2006. Under that system, a person could apply for subsidiary protection after an asylum application had been refused. The Court of Appeal noted that the system has since been replaced by procedures under the International Protection Act 2015; the appeals concerned the earlier arrangements.

The appellants argued that their right to be heard was breached because there was no appeal against subsidiary protection refusals and because the Minister had not shown them country-of-origin information relied upon. The court rejected that argument. It said the absence of an appeal, by itself, did not invalidate the decisions, and the appellants had not identified exceptional circumstances requiring an interview or an opportunity to comment on the information.

They also argued that judicial review was not an effective remedy under EU law. The court said prior decisions of the Irish and EU courts established that judicial review could provide the required review. It found no basis to set aside the High Court’s rejection of that argument.

A further challenge concerned the timing of applications. The appellants said the former process unlawfully tied subsidiary protection applications to the deportation process and did not allow them to apply for subsidiary protection at the same time as seeking refugee status. The Court of Appeal accepted that the 2006 rules did not expressly provide for simultaneous applications. It nevertheless found that all 10 appellants had applied for subsidiary protection and had their applications considered. They had not shown how the process or the time taken affected the effectiveness of their protection claims, or established prejudice from the inability to apply earlier.

The judgment recorded that the time between refusal of refugee status and refusal of subsidiary protection ranged from about five months to three years and nine months across the cases. The court concluded that the procedural defect did not undermine the substance of the appellants’ rights in these appeals. It also refused requests to refer questions to the Court of Justice of the European Union, finding that the issues had been addressed in existing case law. The appeals were dismissed.

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