The High Court has refused to extend time for S.M.O. and three of her children to seek leave for judicial review of decisions on their asylum claims. The application therefore failed as out of time. The court did not decide whether the underlying refugee decisions were legally correct.
The judgment, delivered by Mr Justice Cooke on 7 May 2009, concerned a Refugee Applications Commissioner report from 30 November 2004 and a Refugee Appeals Tribunal decision from 30 June 2005. S.M.O., a Somali national, had applied for asylum in Ireland in January 2004, including four children then in her care. She said the family belonged to the Rer Hamar minority and feared militia persecution. The Commissioner recommended refusing refugee status, citing credibility concerns. The Tribunal later found she had not established a well-founded fear of persecution, relying on inconsistencies, missing documents and her failure to explain why she had not sought asylum in Ethiopia.
S.M.O. began judicial review proceedings on 18 September 2007, about 26 months after the Tribunal decision. The court allowed three children to be joined as applicants because they had been included in the earlier asylum proceedings, shared an interest in challenging the decisions and were not proposing materially new grounds. That ruling did not resolve the separate issue of whether the case could proceed late.
Under section 5 of the Illegal Immigrants (Trafficking) Act 2000, the court considered whether there was good and sufficient reason to extend the 14-day period for seeking leave. S.M.O. cited depression after a son’s death, financial difficulty and problems obtaining a solicitor. The judge found the evidence about what she and her earlier legal advisers did after the Tribunal decision was incomplete, and said there was no evidence of reasonable diligence over the more than two-year delay before she contacted her current solicitor.
The children also provided no evidence explaining why they waited until February 2009 to seek to challenge the decisions in their own right. The court said their claim rested on the same account of persecution advanced by their mother and found the applicants shared the absence of a sufficient explanation for the delay.
The court also refused an extension to challenge the Commissioner’s report. The applicants had pursued the statutory appeal to the Tribunal, and the court found no argument that this route was inadequate to address the complaints about the report. It refused the requested extensions of time; consequently, leave for judicial review was not granted.