The High Court has allowed a Botswanan woman to argue that the refusal of her subsidiary protection application should be reconsidered in light of later guidance from the Court of Justice of the European Union. It refused her leave to pursue a separate challenge alleging that the asylum process did not provide an effective remedy.
In a judgment delivered on 14 June 2013, Mr Justice Hogan considered the applicant’s request to amend her judicial review grounds after earlier parts of her case had been decided. The court granted leave on the subsidiary protection issue only. It did not quash the refusal decision or decide the merits of her protection claim.
The applicant, a Pentecostal Christian, had claimed that her pygmy status left her unable to resist pressure from villagers and family members to become a fetish priestess, contrary to her beliefs. She alleged that she had been abducted and taken to caves for an induction ceremony, escaped, and later faced demands to return for training. These were her claims; asylum authorities rejected her account on credibility grounds.
Her refugee application was refused, as was a later subsidiary protection application. In refusing subsidiary protection, the decision-maker relied on findings made during the asylum process, including adverse credibility assessments, rather than making an independent credibility assessment, the judgment said.
The Court of Justice’s ruling in MM gave national courts guidance on procedures for subsidiary protection applications. Hogan said the guidance indicated that, in Ireland’s two-stage protection system, the subsidiary protection decision-maker could not simply adopt earlier adverse credibility findings without a separate assessment. The applicant’s proposed argument therefore concerned a decision that, according to the judgment, had relied heavily on those earlier findings.
The judge considered whether to let her add that ground after earlier rulings in her judicial review case. He noted the general difficulty of reopening issues after judgment, but said the MM guidance had addressed a matter beyond the specific question referred to the Court of Justice. In the unusual circumstances, he granted leave to argue that the guidance applied to her subsidiary protection challenge.
The court refused leave on the effective-remedy issue. Hogan said the Court of Justice had already rejected the argument that the Irish system failed to provide an effective remedy, and that the proposed ground could not succeed. The judgment leaves the subsidiary protection challenge to be argued; it makes no final ruling on that challenge.