The High Court quashed a decision that an applicant was ineligible for subsidiary protection, finding that the Minister had failed to consider new Red Cross information relevant to whether she was Somali or Kenyan.
In a judgment delivered on 23 March 2012, Mr Justice Kevin Cross said the Minister had not explained why documents about the tracing of the applicant’s family were rejected as evidence of her identity or nationality. The court ordered certiorari quashing the Minister’s decision of 30 May 2011. It did not itself decide the applicant’s nationality or grant subsidiary protection.
The applicant claimed to be Somali and said she was born on 25 December 1990. The judgment records that she had previously applied for a UK visa using a different name and date of birth, and that earlier refugee-status decisions found her account not credible. The Refugee Appeals Tribunal upheld the recommendation to refuse her refugee claim.
The applicant later sought subsidiary protection and humanitarian leave to remain. In March 2011, the Minister said the application would be processed on the basis that she was Kenyan, and invited submissions on her claim to be Somali. Her solicitors submitted further material, including Irish Red Cross correspondence indicating that people identified as her mother and husband had been located in Afgoye, Somalia. They argued that the tracing information supported her claimed identity and nationality.
The Minister’s subsidiary protection decision said that if the applicant were Somali, the conditions described in the decision would expose her to a real risk of serious and individual threat from indiscriminate violence. The respondent’s counsel accepted that she would qualify for subsidiary protection if she were Somali. The Minister nevertheless treated her as Kenyan and said she had not claimed a risk of serious harm in Kenya.
Justice Cross found that the decision gave no reason for rejecting the Red Cross material and did not connect that rejection to the earlier adverse credibility findings. He said the information was relevant to the central question of nationality and required consideration, even if the Minister did not regard it as formal documentary proof of identity. The earlier credibility decisions had been made without the Red Cross documents.
The court held that the failure to consider the new information, and to give reasons for discounting it, breached the decision maker’s duty. It quashed the ineligibility decision. The judgment said any further ancillary orders could be discussed.