The High Court has dismissed F.D. (Nigeria)’s judicial review challenge to a decision refusing permission to make a late subsidiary protection application. The court also rejected the applicant’s fallback challenge to the validity of the 2017 regulations governing late applications.
Mr Justice Richard Humphreys delivered judgment on 31 July 2018. The principal relief sought was an order quashing the decision of 13 April 2018. The court dismissed the application; it did not grant that relief.
F.D. arrived in Ireland in June 2009 and claimed asylum. His claim and subsequent appeal were refused. The Refugee Appeals Tribunal rejected his account of difficulties in his country of origin. The Minister formally refused refugee status in November 2009 and sent a letter inviting an application for subsidiary protection within 15 days. No such application was made then. A deportation order followed in September 2010.
The applicant said he had instructed his former solicitor to seek subsidiary protection as well as leave to remain. The judgment records that the solicitor sought leave to remain only. The judge found that the evidence did not establish that the applicant had given the claimed instruction, or when he learned that no subsidiary protection application had been made. The affidavit was described as skeletal: files, attendance notes and evidence from former solicitors were not provided, and the applicant did not explain the full period of delay.
After the Court of Justice of the European Union ruled in Danqua in October 2016 that the 15-day deadline was incompatible with EU law, Ireland’s 2017 regulations provided a 30-working-day period for certain people to apply, with an extension possible in special circumstances or where refusing a late application would be unjust. That period ended on 13 November 2017. The judge held that the applicant’s unexplained failure to use that opportunity precluded relief.
The court also found no basis to overturn the Minister’s conclusion that special circumstances had not been shown, and said the 2017 regulations did not breach EU law principles of effectiveness or equivalence. The judgment stated that the fallback challenge did not arise on the case’s evidential shortcomings, before addressing it in case that view was wrong. An injunction insofar as it indirectly challenged the deportation order out of time also failed to comply with section 5 of the Illegal Immigrants (Trafficking) Act 2000.