The High Court quashed the Minister for Justice and Equality’s 2010 refusal of a Nigerian woman’s application for subsidiary protection, finding that the decision applied an erroneous definition of “serious harm” and failed to consider whether compelling reasons arose from her past treatment.
The ruling, delivered by Mr Justice Kevin Cross on 1 March 2012, does not itself grant subsidiary protection. The judge said it was for the Minister to decide whether the applicant qualified, but that the assessment must not exclude harm solely because it was inflicted by people who were not “actors of serious harm” under the regulations.
The applicant arrived in Ireland in November 2006 and applied for asylum. The judgment records that she had entered an arranged marriage at 16, could not have children and had sickle-cell anaemia. She recounted rape, torture and other serious ill-treatment by her husband and his associates, leaving physical scars and continuing trauma. The judge said her credibility had not been doubted.
Her asylum application was refused by the Refugee Appeals Commissioner and, on appeal, by the Refugee Appeals Tribunal, which considered internal relocation appropriate. The Minister later refused subsidiary protection in a letter dated 29 October 2010. The applicant challenged that refusal by judicial review.
The Minister’s decision said non-state actors could be treated as actors of serious harm only if the state was unable or unwilling to protect against the harm. It concluded that this had not been demonstrated and that the applicant had not suffered treatment falling within the definition of serious harm. The Minister had also considered country information, state protection and relocation. The applicant did not challenge that part of the assessment directly, but argued the mistaken definition could have affected the wider decision.
The court held that serious harm was not limited to harm inflicted by an actor of serious harm. Whether the perpetrator met that definition remained relevant to whether the applicant could obtain protection in her country of origin, but it did not make the harm any less serious for the purpose of the regulations.
The judge also found that, by deciding the applicant had not suffered serious harm on that basis, the Minister had failed to consider whether her past harm was a serious indication of future risk or whether compelling reasons arising from it alone could support eligibility under Regulation 5(2). The court said the error may also have affected the assessment under Regulation 5(1).
The order quashed the refusal on two grounds: the Minister’s error of law about serious harm inflicted by non-state agents, and the failure to consider whether compelling reasons arising from previous serious harm warranted subsidiary protection. The court left the eligibility decision to the Minister.