The High Court has granted an interlocutory injunction restraining the proposed deportation of an anonymised Rwandan applicant, pending a ruling from the Court of Justice of the European Union on a referred question about how protection applications are assessed.
In a judgment delivered on 5 September 2011, Mr Justice Hogan said the applicant had established a fair question to be tried, despite the judge having rejected his arguments after a full hearing. The question referred concerns whether the duty on member states to assess international protection applications in cooperation with applicants requires authorities to provide an adverse draft decision in advance for comment.
The applicant argued that the failure to provide such a draft invalidated the refusal of his subsidiary protection application. The judge said he did not personally accept that interpretation, but referred the question because of a conflicting view taken by the Dutch Council of State and the need to avoid inconsistent interpretations across member states. The Court of Justice had refused an urgent hearing request.
The injunction was reconsidered after that refusal. Applying the principles in Campus Oil, the judge found a fair issue remained for determination and weighed the balance of convenience. He said maintaining the status quo would help ensure the EU court’s ruling did not appear hypothetical if the applicant were deported before it was delivered.
The judgment also recorded factors against relief. The applicant’s asylum claim had been rejected on credibility grounds, a decision that was not challenged, and the subsidiary protection decision relied heavily on it. The judge said he had to proceed on the assumption that the applicant would not suffer serious harm if returned. He also cited the cost to State resources and the prospect that other applicants might seek similar protection.
The judge nevertheless concluded that those considerations did not overcome the presumption in favour of preserving the existing position. He ordered that deportation be restrained pending the Court of Justice’s decision and said he would send the judgment to its Registrar with a request to accelerate the hearing if possible. The injunction is interlocutory; the judgment does not determine the referred EU law question or grant asylum or subsidiary protection.