The High Court has dismissed a Somali applicant’s judicial review challenge to a refusal to process his purported application for subsidiary protection. The court held that the challenge was a collateral attack on earlier deportation decisions, that the 2006 regulations did not support an application made after their revocation, and that the claim was out of time.
The judgment, delivered by Mr Justice Richard Humphreys on 14 May 2018, concerned a man identified as A.A.D. (Somalia). He arrived in Ireland in 1997 and was refused asylum in 2000, before the EU Qualification Directive took effect. The Minister for Justice proposed deportation at the time. The applicant was later granted permission to remain, which superseded that first proposal.
After his permission expired, a second deportation proposal was made in 2011 while he was serving a prison sentence. A deportation order followed in 2012. The judgment records that the order cited the asylum refusal as a basis for deportation, and that it was notified in September that year.
The applicant purported to apply for subsidiary protection in December 2013 under Irish regulations made in 2006. Those regulations had been revoked the previous month. The Refugee Applications Commissioner and Minister subsequently said the application could not be processed. The applicant did not challenge the Commissioner’s April 2015 decision. After a further refusal in June 2017, he sought judicial review, arguing that a 2017 decision implementing an EU court ruling meant his application had to be accepted and that the latest refusal restarted the time limit for a challenge.
The court said that granting relief on the basis that a protection application remained pending would undermine earlier decisions covered by the statutory procedure for challenging deportation decisions. Any defect in the deportation process, including an alleged failure to notify the applicant about applying for protection, should have been challenged through that procedure at the time, the judgment said.
Considering the merits in the alternative, the judge assumed without deciding that the applicant had acquired a right to apply under the 2006 regulations. He held that the right could not be enforced after those regulations were revoked, and that the applicant did not qualify under the 2013 regulations’ transitional provisions. The judge also held that EU law did not give him a right to subsidiary protection because his asylum claim had been refused before the Qualification Directive took effect.
Finally, the court held that the 2017 refusal repeated earlier refusals and did not restart the judicial review time limit. The application was dismissed. The court did not decide whether the applicant had initially acquired a right under the 2006 regulations.