The High Court refused a judicial review application by an anonymised applicant from Cameroon who argued that he should have a full appeal against the refusal of subsidiary protection before a deportation decision could lawfully be made.
Mr Justice Cooke delivered judgment on 16 February 2012. The application challenged the Minister for Justice and Law Reform’s decision of 11 January 2011 that the applicant was ineligible for subsidiary protection, and a deportation order made two days later. Leave to seek judicial review had been granted in November 2011 on the single ground that EU law’s principle of equivalence required an appeal comparable to the appeal available in the asylum process.
The court rejected that ground. It said the earlier asylum process had included an interview and an appeal hearing before the Refugee Appeals Tribunal, and that judicial review of the subsidiary protection determination could provide the required effective remedy. The judgment held that neither the EU Procedures Directive nor the principle of equivalence required a further appeal by way of a rehearing on the merits in these circumstances.
The applicant’s asylum claim had been rejected after the Refugee Appeals Tribunal upheld a negative recommendation in February 2008, citing credibility concerns. His later subsidiary protection application relied on the same account of political activity and mistreatment. He had claimed that he was involved with a separatist movement, that police repeatedly searched his home, and that he was arrested in January 2000 and held for five years without charge, where he was mistreated. These were his claims, not findings made in this judicial review judgment.
The court said the Minister was required to take account of credibility findings from the asylum process where the later application relied on the same facts. It reasoned that reconsidering those facts as if the applicant might qualify as a refugee would conflict with the requirement that an applicant for subsidiary protection had already been declared not to be a refugee.
The judgment concluded that the applicant had not established the ground on which leave was granted and refused the application. It did not grant the requested relief or order a new appeal hearing.