The High Court has rejected H.N.’s judicial review challenge to rules requiring an asylum claim to be refused before an application for subsidiary protection must be considered.
Mr Justice Ryan delivered the judgment on 15 December 2010. H.N., a Pakistani national, sought to apply directly for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. He had not applied for asylum. The Minister informed him in July 2009 that only a person whose application for refugee status had been refused could apply for subsidiary protection.
H.N. argued that the regulations did not properly implement the EU Qualification Directive because it did not limit subsidiary protection to people whose asylum applications had failed. He said he did not claim to be a refugee but needed international protection, and argued that requiring an asylum application first would force him to make a false or untruthful claim. He sought declarations that the relevant regulations were unlawful, along with judicial review orders concerning the Minister’s refusal to consider his application.
The respondents submitted that the regulations were consistent with the Directive. They argued that whether a person qualifies as a refugee must be determined by a competent authority, rather than by the applicant alone. They also relied on the removal of a stand-alone application provision from the final Directive and on a 2010 Supreme Court decision concerning the regulations.
Justice Ryan said the practical dispute was whether H.N. had to apply for asylum and be refused before making his subsidiary protection case. He considered the respondents’ interpretation more persuasive. The State could choose among legitimate ways of implementing the Directive, he said, and the applicant had to show that the chosen approach was not permitted or that the regulations failed to do something the Directive required. Showing that another approach was possible would not be enough. The judge concluded that the regulations’ approach was within the Directive’s terms.
The judge also said H.N. could explain in an accompanying letter that he was applying for asylum only because the process required it, and could give evidence truthfully. He concluded that H.N. was not entitled to the orders sought. The judgment did not determine whether H.N. qualified for subsidiary protection; it addressed the requirement to proceed through the asylum process first.