The High Court has refused a Somali national’s challenge to a decision not to consider his application for subsidiary protection, holding that the EU rules did not give him a right to apply under the post-2006 system after his refugee claim had been decided in 2005.
The judicial review concerned a 17 June 2015 decision by the Refugee Applications Commissioner. The Commissioner said the applicant’s case did not fall within the categories of applications the office was authorised to process under the 2013 Regulations.
The applicant had been refused refugee status in December 2005 and received permission to remain in Ireland in August 2011. He applied for subsidiary protection in January 2015. After the Commissioner said he could not accept the application, he also sought readmission to the asylum process under section 17(7) of the Refugee Act 1996. That request was refused. The refusal of readmission was not under challenge in this judicial review.
The applicant argued that Article 18 of the EU Qualification Directive entitled him to apply for subsidiary protection, and that Ireland’s rules improperly excluded people whose refugee claims were decided before the Directive took effect. He relied on European court decisions concerning access to subsidiary protection and the principle that national procedure must not make EU rights impossible or excessively difficult to exercise.
The respondents argued that the Directive did not reopen protection decisions made before October 2006. They also said the applicant had leave to remain and retained protections under Irish law against removal where he faced a risk to his fundamental rights.
Justice Faherty accepted that the Directive recognises an entitlement to subsidiary protection for people who meet its criteria, but rejected the claim that it applied retrospectively to the applicant. She held that the 2006 and 2013 Regulations did not cover his case because his refugee application had been determined, and the proposal to deport him had been made, before the 2006 Regulations came into force.
The judge also found that the principle of effectiveness could not assist because the applicant had no substantive right under the Directive in these circumstances. She said his existing protections against removal remained in place, and that no current proposal to deport him was before the court. The court declined to refer questions to the European Court of Justice, finding no basis for a reference. It did not consider the respondents’ argument about delay, and denied the relief sought.