The High Court has refused a Nigerian woman’s application to quash a 2011 decision refusing her subsidiary protection, holding that the absence of a separate appeal did not make the process unlawful under the effective-remedy requirement.
In a judgment delivered on 24 November 2016, Ms Justice O’Regan said judicial review could satisfy the relevant requirement in Article 47 of the EU Charter of Fundamental Rights. She relied in particular on a 2016 Court of Appeal decision concerning the adequacy of judicial review in asylum-related proceedings.
The applicant had sought subsidiary protection after her refugee-status applications were refused. The Minister for Justice and Equality rejected her subsidiary protection application on 28 March 2011 following a paper-only process. No appeal was available under the procedure then in place. A deportation order was signed on 21 April 2011, and the applicant and her children were deported to Nigeria in March 2012.
The applicant’s challenge argued that the lack of a full appeal breached her right to an effective remedy. She also relied on the principle of equivalence, but accepted at the hearing that a later EU court ruling meant that principle did not apply to her case.
The Minister argued that the case had become moot because the applicant and her children had returned to Nigeria and she had been living there for more than four and a half years. The judge declined to resolve the application on that basis. She noted that the Supreme Court had previously rejected a mootness application after full argument, while also recording that the information before her about that earlier application was limited.
The judgment considered whether an effective remedy required a full, fresh examination of the facts and law. The applicant relied on a later EU directive that provides for such an examination, but Ireland had not joined that directive. The judge accepted the respondents’ argument that the directive made substantive changes and did not determine the meaning of the earlier rules applicable to the applicant.
The court also considered a European Court of Justice ruling that requires an applicant to be able to make views known before a decision refusing protection. The judgment said the applicant had not shown that judicial review was inadequate by identifying a particular argument she had been unable to make, beyond the general complaint that no appeal was available.
The court refused the judicial review application. It did not quash the 2011 refusal of subsidiary protection.