The High Court has refused to quash a refusal of subsidiary protection and a deportation decision challenged by a Bangladeshi pharmacist, while granting him more time and leave to bring judicial review proceedings.
In a judgment delivered on 8 November 2016, Ms Justice O’Regan said she found no evidence of bias in the procedure and accepted that the chronology did not breach Regulation 4(5) of the European Communities (Eligibility for Protection) Regulations 2006 or the respondent’s letter setting out the process.
The applicant had arrived in Ireland in December 2007 and sought refugee status. After that application was refused and an appeal was unsuccessful, he applied for subsidiary protection and leave to remain. The Minister refused subsidiary protection by a decision dated 13 December 2010. A deportation order was made on 16 December 2010.
The applicant argued that officials had prepared and approved work on both subsidiary protection and possible deportation before the protection decision was finalised. He said the overlap showed bias or prejudgment and breached the regulation, which provides that when an applicant is found ineligible for subsidiary protection, the Minister shall then proceed to consider whether to make a deportation order.
The respondent argued that the officials’ work was preparatory and carried no independent decision-making authority. The final protection decision was made on 10 December 2010, while the deportation order was signed by the Minister on 16 December. The respondent also said the applicant had not challenged the substance of either decision, only the timing of the considerations.
Justice O’Regan followed earlier High Court decisions on the meaning of the regulation and officials’ preparatory work. She was not satisfied that the European Court of Justice ruling in M.M. altered those decisions on timing, or that the Supreme Court’s 2015 ruling in W.T. undermined their treatment of the Carltona principle. She said the preparatory reports did not themselves exercise a statutory power.
The court extended the time for the applicant to seek leave and granted leave to apply for judicial review on the terms of his motion. It refused, however, to quash either the subsidiary protection decision or the deportation decision. The judgment does not grant the requested relief against those decisions.