The Supreme Court held that the subsidiary protection regulations do not give the Minister for Justice discretion to reopen deportation orders made before 10 October 2006. The ruling addressed a preliminary legal issue in an appeal by a mother and her two minor daughters, and did not decide the appeal’s other grounds.
The family’s deportation orders were made in November 2005 after their applications for refugee status were refused. The mother had said the family feared that her daughters would face female genital mutilation if returned to Nigeria. Her account that an older daughter had died after undergoing FGM had been accepted in earlier proceedings; the Supreme Court said it did not need to resolve a later dispute raised by the Minister about whether that child existed.
In March 2008, the mother applied for subsidiary protection on behalf of herself and her daughters under European Communities regulations that took effect on 10 October 2006. The Minister declined to consider the applications, concluding that the submitted documents did not show altered circumstances since the deportation orders. The High Court refused the family’s judicial review challenge, finding the Minister’s conclusion was not irrational and that he had given sufficient reasons.
On appeal, the Supreme Court invited submissions on whether Regulation 4(2) gave the Minister discretion to consider applications from people whose deportation orders predated the regulations, if they identified new facts or changed circumstances. The court said the appeal concerned only the regulations and, where relevant, the EU directive they implemented. It expressed no view on other statutory powers or the State’s general executive powers.
Justice Fennelly, delivering the judgment on 9 July 2010, held that Regulation 4(2) was negative in form: it specified cases the Minister was not obliged to consider but did not confer a separate power to consider other applications. Read with the regulations’ scope and application rules, it formed a scheme for applications linked to deportation notifications made after the regulations came into operation.
The court also rejected the argument that the directive required a different interpretation. It found no provision requiring member states to reopen deportation orders made before the regulations took effect. Justice Fennelly concluded that the High Court interpretation in an earlier case, which had recognised a limited discretion to consider applications based on new circumstances, was erroneous.
The judgment resolved that preliminary issue. It did not rule on the family’s remaining appeal grounds or determine whether they were eligible for subsidiary protection.