The High Court refused an application by S.J. for a certificate to appeal its October 2017 judgment concerning a refusal to allow a further application for subsidiary protection.
Mr Justice David Keane ruled on 13 December 2017 that a certificate under section 5 of the Illegal Immigrants (Trafficking) Act 2000 was required for the proposed appeal. The applicant had argued that the requirement did not cover a decision by the Minister for Justice and Equality upholding, on review, an earlier refusal of consent under section 17 of the Refugee Act 1996.
The court rejected that argument. It held that excluding a review decision from the certificate requirement would create an irrational gap in the restrictions governing appeals from certain immigration and asylum decisions. The judge also said the adverse review decision could be characterised as a refusal to alter the original decision.
The applicant sought certification of four proposed points of law as matters of exceptional public importance where an appeal would be desirable in the public interest. The court applied principles requiring, among other things, genuine legal uncertainty and an affirmative public benefit from an appeal.
The first proposed point concerned whether credibility findings from an earlier refugee-status application could be relied on when reviewing a refusal of consent to make a further subsidiary-protection application. The judge said the proposed wording changed the case advanced at the original hearing and conflicted with findings in the October judgment about the limited evidence provided on the subsidiary-protection decision. He also considered the relevant law settled.
The court said the second proposed point, about whether failure to challenge an earlier credibility finding could justify relying on it later, did not arise from the October judgment. It rejected the applicant’s reading of a passage in that judgment as suggesting that an unchallenged finding created a form of “quasi-estoppel.”
The third proposed point asked how a decision-maker should treat earlier credibility findings and whether they had been adopted on a reasoned basis. The judge said it rested on a factual premise that had not been established in evidence and confused the subsidiary-protection decision with the later review decision.
The fourth point concerned whether developments in case law amounted to new elements requiring the applicant’s readmission to the protection process. The judge said the October judgment had found it unnecessary to decide that issue, so it could not be certified for appeal from that decision.
The ruling addressed only the application for a certificate. The court refused it; the source does not state the outcome of any subsequent appeal.