The Court of Appeal has quashed the Minister for Justice and Equality’s refusal to accept Evelyn Danqua’s application for subsidiary protection, after holding that the refusal relied on a 15-working-day deadline found incompatible with EU law.
In a judgment delivered by Mr Justice Gerard Hogan on 6 February 2017, the court allowed Ms Danqua’s appeal on that ground and granted an order of certiorari quashing the Minister’s decision of 5 November 2013. The court did not decide whether Ms Danqua qualified for subsidiary protection.
Ms Danqua, a Ghanaian national, had applied for refugee status in Ireland in April 2010. The Refugee Appeals Tribunal refused her application on credibility grounds in January 2011. A deportation proposal later set out options including applying for subsidiary protection. No such application was made then. Her legal representatives instead applied for humanitarian leave to remain in March 2011.
After that application was refused and a deportation order was signed in September 2013, new solicitors applied for subsidiary protection on Ms Danqua’s behalf in October 2013. The Minister refused to accept the application, saying the 15-day period had expired. The deadline was administratively imposed and had no legislative basis.
Ms Danqua’s original challenge argued that the deadline breached the EU principle of equivalence because no similar time limit applied to refugee applications. She also argued that the Minister’s refusal rested on an unsustainable assumption that she had consciously chosen not to apply earlier. The High Court rejected her claims in October 2014.
On appeal, the Court of Appeal referred questions to the Court of Justice of the European Union. The EU court found that equivalence did not apply to the comparison at issue, but then reformulated the questions to address the principle of effectiveness. It held that a 15-working-day deadline for seeking subsidiary protection was too short to ensure applicants had a genuine opportunity to exercise their EU rights.
At the resumed hearing, the State argued that the EU court’s effectiveness ruling was outside the issues originally raised and did not bind the Court of Appeal. The Court of Appeal rejected that position. It said it was bound to give effect to the EU ruling and could not look behind the basis on which the EU court had answered the reformulated question.
The ruling means the 15-day rule could no longer provide a legal basis for administrative decisions. The appeal was allowed on the effect of that ruling, and the Minister’s refusal was quashed.