The Court of Appeal has dismissed X.X.’s appeal over the refusal to accept a fresh asylum application, affirming the High Court’s decision on narrower grounds. The court held that his proceedings amounted to a collateral challenge to a June 2015 ministerial refusal of permission to re-enter the asylum process. That decision could be challenged only through judicial review under section 5 of the Illegal Immigrants (Trafficking) Act 2000.
The appeal concerned a separate set of judicial review proceedings from those in which X.X. challenged his deportation. The Court of Appeal said it had no jurisdiction in this appeal to consider the deportation order, which was not the issue before it.
X.X., a Jordanian national of Palestinian extraction, first applied for asylum after arriving in Ireland in 2000. He withdrew that application in August 2000 while seeking residency based on his Irish-born child. The Minister’s department acknowledged his wish to withdraw the next day and forwarded his residency application for consideration.
In April 2015, after the Commissioner declined to accept a fresh asylum application without the Minister’s consent, X.X. applied under section 17(7) of the Refugee Act 1996 for permission to re-enter the asylum process. The Minister refused that request on 17 June 2015. X.X. had made the application “without prejudice” to his position that consent was unnecessary.
The Court of Appeal disagreed with the High Court’s conclusion that the 2000 withdrawal was effectively a refusal of asylum under the later statutory scheme. It found that the application had been withdrawn before the relevant provisions of the 1996 Act commenced, and that the transitional provisions did not convert the withdrawal into a refusal. The court said that, had X.X. not also made the 2015 section 17(7) application, it would have held his 2015 asylum application valid and one the Commissioner was obliged to consider.
But the court concluded that the separate proceedings seeking recognition of a valid 2015 asylum application would, in substance, challenge the Minister’s refusal of re-entry. Since that refusal had to be challenged directly by judicial review, the court upheld the High Court’s result. It dismissed the appeal and affirmed the decision, for narrower reasons than those given by the High Court.