Judgment: 2012-10-12 · Court archive

High Court grants leave to challenge fairness of subsidiary protection process

The court rejected most grounds raised by two Congolese applicants but allowed them to pursue arguments about how Ireland’s subsidiary protection procedure operates. It did not decide whether the procedure was unlawful.

High Court · 2012 [IEHC] 485

Who, what, where, when and why

Who
  • Ireland
What

The court rejected most grounds raised by two Congolese applicants but allowed them to pursue arguments about how Ireland’s subsidiary protection procedure operates. It did not decide whether the procedure was unlawful.

Where

Places mentioned in the report

  • Kinshasa
  • Ireland
  • Democratic Republic of the Congo
When

Judgment:

Why

Reasons reported in the judgment

The court found they had not established substantial grounds on those arguments. It said judicial review could provide an effective remedy and that the applicants had not shown an arguable case that their return to Kinshasa would expose them to serious harm. It also rejected their arguments about the alleged lifelong effect of deportation orders and their claim that they had been prevented from leaving voluntarily.

The High Court has allowed two applicants from the Democratic Republic of the Congo to bring judicial review proceedings on a limited ground concerning the fairness of Ireland’s subsidiary protection process. The court extended time for their applications and refused leave on most of the other grounds they raised.

The applicants, identified in the judgment as J. C. M. and M. L., challenged decisions refusing them subsidiary protection and making deportation orders. Their earlier asylum claims had been rejected on credibility grounds, and those decisions were not themselves challenged by judicial review.

Both men later applied for subsidiary protection and leave to remain. The Minister’s officials refused subsidiary protection in each case, and deportation orders followed. The applicants argued, among other things, that judicial review was not an effective remedy, that the Minister had treated country information selectively, and that deportation was disproportionate.

The court found they had not established substantial grounds on those arguments. It said judicial review could provide an effective remedy and that the applicants had not shown an arguable case that their return to Kinshasa would expose them to serious harm. It also rejected their arguments about the alleged lifelong effect of deportation orders and their claim that they had been prevented from leaving voluntarily.

The court adjourned its decision on a separate argument that the subsidiary protection procedure failed to require the Minister to cooperate with applicants, pending guidance from the Court of Justice of the European Union.

It granted leave to pursue arguments about the timing and structure of the protection process. These include whether applicants are told their permission to remain has expired before they can apply for subsidiary protection; whether earlier credibility findings affect consideration of the later application; and whether the decision-maker’s independence, competence and training are adequately safeguarded.

The judgment expressed concern about the standard-form letter that combined the right to seek subsidiary protection with a discretionary request to remain on humanitarian grounds. It also noted concerns about applications being considered by departmental officials who were not independent of the Minister. Those observations supported allowing the arguments to be developed at a substantive hearing; they were not a final ruling that the process was unlawful.

The court’s decision was therefore limited: it granted leave on the specified fairness grounds, refused leave on most other grounds and adjourned one issue. It did not quash the subsidiary protection decisions or deportation orders, nor determine the ultimate legality of the procedure.

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