The High Court dismissed two judicial review applications challenging the refusal of subsidiary protection to a Zimbabwean mother and her child, who was born in Ireland. Mr Justice Richard Humphreys delivered the judgment on 18 April 2018.
The mother and child had sought asylum in 2008. Their applications were rejected, and the tribunal affirmed those decisions later that year. The Minister refused them refugee status in January 2009 and subsidiary protection in July 2011. Deportation orders were made against both in August 2011.
After the mother told the Minister that she and the child’s father had separated and that she had primary care of the child, she made an application under section 3(11). The judgment says that application resulted in both deportation orders being revoked. An order against the father remained in force, but his circumstances were outside these proceedings.
The cases before the High Court challenged the subsidiary protection decisions. The State contested additional grounds added to the cases in 2017. Humphreys said the amendments could be relied on because the leave applications had been adjourned and were heard together with the judicial reviews. He said courts should normally accommodate adjustments while an applicant is moving an application for leave, and noted that leave applications should be dealt with promptly.
The judge rejected the purely legal grounds, saying they raised no new points and had already been rejected in earlier decisions. He also rejected the child’s fact-specific grounds. The pleaded claims about irrationality, the child’s best interests and consideration of representations were boilerplate and did not identify specific defects in the decisions, he said.
The child’s representatives had argued that the Minister did not expressly address a fear of return to Kinshasa as a failed asylum seeker. Humphreys said the child was in his mother’s custody and, on the facts before the court, would overwhelmingly likely be returned to Zimbabwe if permission to remain were revoked. He described the challenge as effectively moot, or at best extremely hypothetical. He added that a future fundamental change proposing the child’s return to the Democratic Republic of Congo should not prevent a fresh protection application where refusing it would breach the child’s rights. The judge also said the Minister’s decision, read as a whole, addressed the substance of the submissions, although the point could have been considered more explicitly.
In the mother’s case, the judge found that no specific breach of fair procedures, failure to consider current material or unreasonableness had been established. He said the Minister’s conclusion that she had not shown she lacked protection in Zimbabwe addressed the claim about general conditions there, independently of credibility findings.
The court dismissed both applications. It did not order deportation or determine any future protection application.