The Supreme Court dismissed Haq Nawaz’s appeal over the refusal to consider his application for subsidiary protection without a prior refugee-status application. The Court held that the Minister’s refusal was lawful on the grounds raised in the proceedings. It reserved the question of costs for a further hearing.
Mr Nawaz applied for subsidiary protection in July 2009. The Minister refused to consider the application because he had not applied for, and been refused, refugee status. Mr Nawaz’s case was that he should not have to apply for refugee status before seeking subsidiary protection.
The High Court refused his judicial review application in December 2010. After separate constitutional proceedings were struck out, the constitutional challenge was added to the judicial review case. The Supreme Court later referred a question of EU law to the Court of Justice of the European Union (CJEU).
In May 2014, the CJEU ruled that EU law did not preclude a national rule requiring a refugee-status application to be refused before subsidiary protection could be considered, provided applicants could apply for both at the same time and the process did not cause unreasonable delay.
Mr Nawaz then argued that the Minister’s refusal should be quashed because Irish law had not allowed simultaneous applications. He also argued that his protection claim had faced unreasonable delay and sought damages. He said quashing the refusal would leave his original application extant and, in turn, invalidate a deportation order made in the interim. The Minister argued that the claims involved grounds not properly raised in the proceedings.
The Supreme Court said the case had not examined whether Irish law in 2009 permitted simultaneous applications. Mr Nawaz had not sought to apply for refugee status at all, even at the same time as subsidiary protection. The Court said the issue he had pursued was his objection to having to make any refugee-status application, rather than the timing of two applications.
The Court concluded that he could not obtain an order quashing the Minister’s refusal on the case he had brought. It also rejected the delay argument: because he had not entered the refugee-status process, the delay could not be attributed to the rule requiring refugee status to be determined first. The Court dismissed the appeal. It did not make an order on costs in this judgment, saying it would hear the parties on that question.