The Supreme Court dismissed an appeal over refusal of leave to challenge a subsidiary protection decision, except for an argument that the application process was improperly tied to deportation. It adjourned that issue pending the outcome of related appeals in VJ and L v Minister for Justice and Equality.
In a judgment delivered on 14 November 2018, O’Donnell J said the appeal concerned the High Court’s March 2012 refusal of leave to seek judicial review. The applicants had sought to challenge the refusal of subsidiary protection and a deportation order. The challenge to the deportation order was at an end after the High Court refused leave and refused a certificate permitting an appeal on that issue. The Supreme Court appeal concerned the subsidiary protection decision.
The first applicant, a Nigerian national, arrived in Ireland in May 2008. Her son, the second applicant, was born the following month and had lived in Ireland all his life. Their asylum applications were refused by the Office of the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal in August 2009. The Tribunal made adverse credibility findings about the first applicant. The Minister refused their subsidiary protection application in April 2011, citing State protection, internal relocation and country information, among other matters.
The judgment records that the deportation order was revoked in 2013 and the applicants were given permission to remain, based on the first applicant being the parent of an Irish citizen child. The Court said this did not make the appeal moot, although the practical benefit of success appeared remote.
The applicants advanced several grounds, including claims about cooperation, the effectiveness of judicial review and the absence of an appeal. O’Donnell J said the only issue of substance remaining was “enmeshment”: whether the subsidiary protection process was improperly linked to the deportation process. He concluded there was little factual basis for that argument in this case, noting that three months separated the refusal of subsidiary protection and the deportation order, and that the applicants made further submissions during that period.
The Court dismissed the appeal on all grounds other than enmeshment. It did not decide that issue. Instead, it adjourned the case to await the outcome of joint appeals in VJ and L, after which it proposed to consider whether any further proceedings were necessary.