The High Court ruled that the Minister for Justice acted outside the European Communities (Eligibility for Protection) Regulations 2006 by rejecting two subsidiary protection requests as invalid without considering whether to use a discretion to consider them.
Mr Justice Feeney’s judgment concerned judicial review proceedings brought by N.H. and T.D. Both had been refused refugee status and leave to remain, and had deportation orders made before the Regulations took effect on 10 October 2006. They sought to quash the refusals and have their applications processed.
The court rejected their claim to an automatic right to apply under the Directive or Regulations. It said the Directive did not require earlier decisions on refugee status, subsidiary protection or leave to remain to be reopened. Under the Regulations, people whose deportation orders predated 10 October 2006 were not obliged to be given consideration of an application.
However, the court held that Regulation 4(2) gave the Minister discretion to consider applications from people outside the group with an automatic entitlement. That discretion had to be exercised through fair procedures and on an individual basis. The Minister should consider whether applicants identified facts or circumstances that had changed since their deportation orders were made.
The judgment discussed the different circumstances raised by the applicants. N.H. had claimed persecution and assaults in his country of origin because of his sexual orientation. T.D.’s November 2006 application relied on information about armed conflict and changing conditions in her country of origin, as well as medical documents. The judge said the updated material raised at least an arguable case that conditions had changed since T.D.’s deportation order was made.
The Minister’s letters had relied on Regulation 3 and treated both applications as invalid, without referring to the discretion under Regulation 4(2). The court found that this failed to recognise the Minister’s powers and was contrary to the Regulations. It did not order the applications to be granted, nor did it decide whether either applicant qualified for subsidiary protection. Instead, it held that applicants with pre-10 October 2006 deportation orders could ask the Minister to exercise discretion where they identified changed circumstances.
The judgment declared the refusal letters ultra vires the Regulations. The court said it would hear the parties on the terms of any certiorari and mandamus orders. The judgment therefore resolved the legal issue about discretion, while leaving the precise orders to be settled.