The High Court has refused a woman’s application to quash the Minister for Justice’s decision that she was ineligible for subsidiary protection. The judicial review concerned a refusal dated 28 June 2011. The judgment was delivered by Ms Justice M. Clark on 28 November 2012.
The applicant, identified in the judgment as N. N. [Cameroon], had been refused refugee status after the asylum authorities rejected her account on credibility grounds. She applied for subsidiary protection and humanitarian leave to remain on the same factual basis. The High Court noted that the earlier asylum decisions had not been challenged by judicial review.
The court rejected three grounds concerning the right to be heard during the subsidiary protection process. It said the applicant had been represented by experienced solicitors and had made detailed written submissions, but had not sought an interview or oral hearing or explained how further opportunities to make representations could have helped her. The court also refused relief on grounds alleging a lack of an effective remedy and an appeal mechanism.
At the hearing, the applicant raised an additional challenge to the Minister’s interpretation of “serious harm”. The court heard both sides on that issue despite no application having been made to amend the statement of grounds. The dispute concerned wording in the Minister’s decision that non-state actors could qualify as actors of serious harm only where the state was unable or unwilling to protect against the harm.
The court considered conflicting High Court approaches in earlier cases. It preferred a purposive interpretation of the protection regulations, while explaining that the legal question about “serious harm” would matter to this case only if past serious harm had been accepted. The applicant’s account of abduction and enforced marriage, including alleged beatings, non-consensual sex and confinement, had been rejected by the asylum authorities. The Minister adopted those credibility findings, and the court said no objective evidence of past serious harm had been provided. Her subsidiary protection application had also made no reference to eligibility under the relevant past-harm provision.
The court concluded that the applicant could not succeed on the additional ground, whether the interpretation was approached literally or purposively. It refused the reliefs sought. The judgment does not grant subsidiary protection or determine the applicant’s separate application for humanitarian leave to remain.