The Court of Appeal has dismissed appeals by F.M. and S.O.U. challenging decisions that refused them subsidiary protection under the procedure then in force. The court rejected their arguments that officials’ preparatory work on possible deportation decisions meant the protection decisions were unlawful because of a breach of Regulation 4(5), bias or prejudgment, or a breach of procedural legitimate expectation.
The appeals arose from High Court judgments dismissing both judicial review applications in April 2018. The applicants sought orders quashing the Minister’s subsidiary protection refusals. Their appeal was limited to those refusals; S.O.U.’s challenge to her deportation order was not pursued at the High Court hearing. The Court of Appeal did not quash either protection decision.
The court considered whether Regulation 4(5) of the 2006 Regulations barred officials from preparing deportation papers before a final subsidiary protection decision. It followed earlier High Court decisions that distinguished preparatory work—such as gathering information and drafting recommendations—from the decision-maker’s consideration of whether to make a deportation order. The court found that the relevant deportation consideration began when the designated decision-maker undertook personal deliberation. In both cases, that occurred after the subsidiary protection decision.
The appellants also argued that the overlapping preparatory work created an appearance that their protection claims had been prejudged. The court found no evidence that the designated protection decision-makers had decided the claims out of sequence. It said the applicants had not shown that those decision-makers were bound by the earlier recommendations or that the preparation of deportation reports, by itself, established objective bias.
On legitimate expectation, the court read the “three-options” letters as promising that the decisions on permission to remain or deportation would follow an adverse subsidiary protection decision. It found that this sequence was followed. The letters did not promise that officials would refrain from preparatory work on the permission-to-remain representations until the protection decisions were made.
The court dismissed both appeals. It proposed that the Minister receive her costs. Either party could seek a different costs order by notifying the Court of Appeal Office within 21 days of receiving the electronic judgment; if no notice was received, the proposed order would be perfected. The judgment was delivered electronically, with Donnelly J. and Binchy J. indicating their agreement.