The High Court has dismissed a judicial review challenge to Ireland’s 2013 subsidiary protection regulations, rejecting claims that the process breached impartiality rules and that the Refugee Applications Commissioner could not delegate the recommendation in the applicant’s case.
The applicant, identified in the judgment as M. B., is a Bangladeshi citizen. He had applied for asylum in 2009, received a negative recommendation from the Refugee Applications Commissioner and lost an appeal to the Refugee Appeals Tribunal. He later applied for subsidiary protection. After the 2013 regulations introduced a new procedure, he attended an ORAC interview under protest. A report was prepared by an interviewer, and a negative subsidiary protection recommendation followed, signed by Donal Horgan “For the Refugee Applications Commissioner”.
M. B. argued that the Commissioner’s earlier adverse credibility assessment and role presenting the asylum case before the Tribunal created bias if the Commissioner’s office later considered his subsidiary protection application. He also challenged the regulations as beyond the Minister’s powers and argued that the recommendation function had been unlawfully delegated.
Justice Mac Eochaidh found that EU law treats asylum and subsidiary protection as connected forms of international protection, with subsidiary protection considered after an asylum claim fails. The court said that prior findings in the asylum process did not, by themselves, amount to prejudgment of the subsidiary protection application. It rejected the EU-law and domestic-law bias arguments. The judgment also rejected the applicant’s ECHR claims, noting that no distinct supporting arguments had been made and that the remedies available under the European Convention on Human Rights Act 2003 had not been pleaded.
On delegation, the judge interpreted Regulation 27(3) as extending to subsidiary protection the Commissioner’s existing power to delegate functions to staff. Regulation 30(2), the court said, bars delegation of the recommendation function to contract staff, while permitting delegation to the Commissioner’s own staff. The judge also concluded that a delegation power was necessary to meet EU law’s requirement for decisions within a reasonable period, or, alternatively, was incidental or consequential to the statutory scheme.
The court therefore dismissed the judicial review application. It did not grant the declarations or certiorari sought by the applicant. The judgment addressed the legality of the regulations and process; it did not make a new decision on whether M. B. qualified for subsidiary protection.