The Supreme Court has referred a question to the Court of Justice of the European Union about whether Ireland may require a person to apply unsuccessfully for refugee status before the Minister for Justice considers an application for subsidiary protection.
The order, made on 19 December 2012 in Supreme Court Appeal 87/2011, does not decide whether H.N. qualifies for subsidiary protection. It asks the EU court to interpret Council Directive 2004/83/EC, in light of the EU principle of good administration and Article 41 of the Charter of Fundamental Rights.
H.N., a Pakistani citizen from the Swat Valley, entered Ireland on a student visa in 2003. He later received permission to remain after marrying an Irish national. The Minister notified him in February 2006 that his permission would not be renewed because he was no longer living with his wife, and that deportation was being considered. The judgment says he then had no legal entitlement to remain. He later completed a master’s degree at Waterford Institute of Technology.
H.N. has never applied for asylum in Ireland. He says he does not claim to fear persecution for a reason covered by refugee law, but fears serious harm if returned to Pakistan because of indiscriminate violence, particularly in the Swat Valley, where his family lives. His family advised him that it would be unsafe to return, according to the judgment.
He applied to the Minister for consideration of subsidiary protection in June 2009. The Minister replied that the regulations did not require consideration because H.N. had never applied for refugee status. The Minister repeated that position after H.N. submitted a formal application and cited an EU court judgment.
H.N. brought judicial review proceedings in October 2009, seeking to quash the refusal and a declaration that the Irish regulations were incompatible with the Qualification Directive to the extent that they excluded people who had not first failed an asylum application. The High Court refused his application, and he appealed to the Supreme Court.
The Minister argued that subsidiary protection could not be considered until refugee status had first been assessed, and that the Directive did not require Ireland to accept a standalone subsidiary-protection application. H.N. argued that requiring him to claim asylum would require statements he considered false and delay consideration of his protection claim.
The Supreme Court said Irish law did not allow a person in H.N.’s position to apply for subsidiary protection without first applying unsuccessfully for refugee status. It referred the legal question to the EU court for a preliminary ruling. The order makes no finding on H.N.’s asserted risk in Pakistan and does not grant the relief he sought; the referred question remains for the EU court to answer.