The High Court rejected a challenge to the transfer of subsidiary protection decisions to the Refugee Applications Commissioner, but declared that the 2013 Regulations unlawfully narrowed the meaning of torture.
The judicial review was brought by an anonymised mother and daughter against the Minister for Justice and Equality and the Refugee Applications Commissioner. The mother, a Ghanaian national, claimed asylum in Ireland in 2007. Her daughter was born here later that year. The judgment recounts the mother’s allegations of threats and attacks by family members in Ghana; those allegations were not findings made in this judicial review.
The applicants argued that a statutory instrument could not lawfully transfer decision-making powers from the Minister to the Commissioner and Refugee Appeals Tribunal without primary legislation. They also argued that the Regulations’ definition of torture was narrower than the definition in the EU Qualification Directive.
Justice Colm Mac Eochaidh rejected the challenge to the transfer of functions. He held that the Directive required Ireland to establish a mechanism for receiving and deciding international protection applications, and that identifying the decision-maker was a matter of filling in the details of that obligation. He also found that transferring the function was, in any event, incidental, supplementary or consequential to implementing the Directive and could be included in regulations under the European Communities Act 1972.
On torture, the court accepted the applicants’ argument. The Regulations incorporated a definition tied to acts involving a public official, while the Directive did not restrict torture to state actors. The judge said the applicants’ account raised a fear of harm from private actors, including family members, and that they were entitled to have their subsidiary protection claim considered under a lawful regime, even though the eventual outcome of that claim was unknown.
The court granted a declaration that the Regulations’ definition of torture was invalid because it was inconsistent with Article 15(b) of the Directive. The judgment expressly notes that the court was not asked to quash the provision, order it disapplied, or direct the decision-maker to apply the Directive instead. It did not decide the applicants’ subsidiary protection application or determine whether their account would be accepted.