The High Court has rejected a Somali woman’s judicial review challenge to the Minister’s refusal to process her application for subsidiary protection, ruling that the Minister had no power to accept it under the applicable regulations.
The applicant received notice of the Minister’s intention to deport her on 7 April 2006, before the European Communities (Eligibility for Protection) Regulations 2006 came into force on 10 October that year. The court held that the regulations did not cover people whose deportation notice was issued before that date, and that the Minister had no discretion to accept their applications.
The woman arrived in Ireland in July 2005 and applied for asylum. Her claim was refused, and the Refugee Appeals Tribunal affirmed the refusal in March 2006. The Minister refused refugee status and notified her of the proposal to deport her the following month. She later received leave to remain, which was renewed on subsequent occasions.
In July 2013, she applied for subsidiary protection, saying that her five children were living in Ethiopia with their grandmother and that she wished to reunite with them. The Minister initially rejected the application on the basis of Recital 9 of the Qualification Directive, which concerns people allowed to stay in a member state on discretionary compassionate or humanitarian grounds.
During the judicial review proceedings, the Minister no longer relied on that explanation. The Minister argued instead that, under the Supreme Court’s interpretation of the regulations in *Izevbekhai v Minister for Justice*, the applicant was not eligible to apply because her deportation notice predated the regulations. The applicant argued that the Minister could not replace the original reason after proceedings had begun.
Mr Justice Barr accepted that the Minister had acted outside her jurisdiction by considering the application and purporting to reject it. He permitted the Minister to advance the jurisdiction argument, while noting that the change of position could be reflected in the costs order. The judgment does not specify a costs order.
The court said the original decision was void, but declined to quash it because doing so would not benefit the applicant. It also refused mandamus, which would have compelled the Minister to process the application, because the regulations did not give the Minister power to do so. The judicial review was rejected and the reliefs sought were refused.