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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> H.N. -v- MJELR & Ors  IESC 58 (19 December 2012)
Cite as:  1 IR 142,  IESC 58
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Judgment Title: H.N. -v- MJELR & Ors
Neutral Citation:  IESC 58
Supreme Court Record Number: 87/11
High Court Record Number: 2009 1019 JR
Date of Delivery: 19/12/2012
Court: Supreme Court
Composition of Court: Fennelly J., O'Donnell J., McKechnie J., Clarke J., MacMenamin J.
Judgment by: Reference - Supreme Court
Status of Judgment: Approved
THE SUPREME COURT
Supreme Court Appeal 87/2011
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
Order for Reference to the Court of Justice of the European Union.
Order made by the Supreme Court on the 19th day of December 2012.
1. The Applicant, a Pakistani citizen, who has not sought asylum or refugee status in Ireland, claims that the first-named Respondent (hereinafter called “the Minister”) is obliged to consider his claim for subsidiary protection. Under the applicable Irish regulations, the Minister is not obliged to consider an application for subsidiary protection save in the case of “a person whose application for asylum has been refused by the Minister.” The Applicant claims that the provisions of Irish law, implementing Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the contents of the protection granted (hereinafter the “Qualification Directive”) which provide for that result are incompatible with that Directive.
2. The Applicant is a Pakistani citizen from the Swat Valley in that country. He entered Ireland lawfully on a student visa in 2003. He married an Irish national and, for that reason, was granted permission to remain in the State until the 31st December, 2005. The marriage was of short duration. The Minister notified him on 23rd February 2006 that his permission to remain in the State was not being renewed as he was no longer residing with his wife. He then ceased to have any legal entitlement to be in the State.
3. On 23rd February 2006, the Minister also notified the Applicant that he was considering making an order, pursuant to statutory powers, for his deportation from the State. Nonetheless, the Applicant remained in the State as a full time student. In 2007 he obtained a Degree of Masters in Business Studies from Waterford Institute of Technology. The Applicant has brought separate proceedings against the Minister and the State claiming that part of the legislation providing for deportation is unconstitutional.
4. The Applicant did not at any time apply for asylum in Ireland. He explains that he does not fear persecution by reason of race, religion, nationality, political opinion, or membership of a particular social group and that he is, therefore, not a refugee.
5. The Applicant claims, however, that he is afraid to return to Pakistan because of the indiscriminate violence occurring there, particularly in the Swat Valley, where his family lives. He says that the Taliban forces are engaging with the Pakistani Army and United States forces and that several million people from the Swat Valley have been displaced. His family has advised him that it would be unsafe for him to return to Pakistan because of this indiscriminate violence. Thus, the Applicant says that he risks suffering serious harm if returned to Pakistan.
6. On 16th June 2009, the Applicant applied to the Minister for consideration of his claim for subsidiary protection. He said that he believed he qualified for consideration pursuant to the Qualification Directive. He said that the two million displaced homeless survivors of the Taliban Reign of Terror in the Swat Valley had been subjected to unrivalled acts of barbarous savagery and inhuman cruelty at the hands of their oppressors.
7. On 23rd June 2009, the Minister replied saying that the basis for making an application for subsidiary protection status was that the person applying had been refused refugee status. Since no application for refugee status had ever been made by the Applicant, an application for subsidiary protection status could not be concidered.
8. The Applicant persisted in his attempt to persuade the Minister to consider his application for subsidiary protection. He completed a formal application form. He drew the Minister’s attention to the judgment of the Court of Justice in Case C-465/07 Elgafaji v Staatsecretaris van Justitie  ECR I-921. The Minister by letter dated the 27th July, 2009 repeated the reason for refusing to consider his application, namely that an application for subsidiary protection could, as a matter of law, be made only by “a person whose application for asylum has been refused by the Minister.”
The national proceedings
9. On 12th October 2009, the Applicant commenced the present proceedings by way of judicial review of the Minister’s decision. The Applicant seeks the following relief:
• A declaration that the national regulations are unlawful and incompatible with the Qualification Directive insofar as they provide that the Minister may not consider an application for subsidiary protection of a person who has not failed in an asylum application.
Relevant legal provisions
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:
i. a uniform status of asylum for nationals of third countries, valid throughout the Union;
ii. a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection…………………
(7) The approximation of rules on the recognition and content of refugee and subsidiary protection status should help to limit the secondary movements of applicants for asylum between Member States, where such movement is purely caused by differences in legal frameworks.
(24) Minimum standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.
(25) It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under the human rights instruments and practices existing in Member States.
(26) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.”
(e) “‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.”
(f) ‘subsidiary protection status’ means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;
(g) ‘application for international protection’ means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately…
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
19. The Qualification Directive was implemented in Ireland by the adoption of the European Communities (Eligibility for Protection) Regulations, 2006 (S.I. No. 518 of 2006) (hereinafter “the Regulations”).
20. Regulation 3 of the Regulations provides, in relevant part:
(a) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates…………………..”
(b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.
(2) The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).”
23. The Supreme Court has held that Regulation 4(2) does not confer any power or discretion on the Minister to consider applications for subsidiary protection other than in the cases provided for, namely those of persons whose applications for asylum have been refused by the Minister. In the same case, the Court held that the provision was not capable, pursuant to the principle of conforming interpretation of being interpreted to that effect.
24. Ireland is the only Member State of the European Union which has not adopted a single administrative procedure applying Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (hereinafter “the Procedures Directive”). This has been noted in the judgment of this Court in Okunade v. Minister for Justice, Equality and Law Reform & ors  IESC 49, the report from the Commission to the European Parliament and the Council on the Procedures Directive (COM (2010) 465 final, paragraph 4.2) and in the judgment of the Court of Justice of 22nd November 2012 in Case C-277/11 M.M v Minister for Justice Equality and Law Reform and others.
Arguments of the parties
26. He says that he is entitled to have his subsidiary protection application considered by the Minister without having to submit an asylum application. Neither Article 78 of the Treaty nor the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers.
27. The Applicant submits that both recital 14 and the Commission Proposal for what became the Qualification Directive demonstrate that subsidiary protection “should be complementary and additional to the refugee protection enshrined in the Geneva Convention.” It is a complementary or supplementary status in the sense that it is an alternative status available to persons who are not refugees.
28. Subsidiary protection is drawn from sources different from the Geneva Convention which provides for refugee status. The Commission Proposal stated (see p. 5):
30. He says the State cannot be permitted, by its transposing regulations, to exclude from their scope a category of persons who are intended to be entitled to benefit from the protection of the Directive, i.e., persons who satisfy Article 15 of the Qualification Directive but who are not failed asylum seekers.
31. The Applicant says that he does not have a well founded fear of being persecuted for a Geneva Convention reason. He cannot, he says, even complete the asylum application form without selecting an untrue reason. Thus, any application he might make would be based on false statements.
32. Furthermore, since Ireland has not adopted a single administrative procedure for consideration of applications for asylum or refugee status and for subsidiary protection status, he would have to wait until he had exhausted the asylum procedures before he could even present his application for subsidiary protection to the Minister. The Applicant submits that it is contrary to the principle of good administration guaranteed by Article 41 of the Charter of Fundamental Rights of the European Union that he should be required to make an application for refugee status in circumstances where he accepts that he is not entitled to and does not claim that status. He refers to the Opinion of the Advocate General, delivered on 26th April 2012, in Case C-277/11 M v Minister for Justice, Equality and Law Reform and others. Referring to the length of time taken to consider an application for refugee status (6.5 months) and an application for subsidiary protection status (21 months), the Advocate General expressed the view that these periods were “manifestly unreasonable.”
33. Finally, the Applicant refers to the duty of candour or truthfulness which applies in national law in cases of applications for judicial review. He says that he should not have to make a false application and rejects the suggestion made in the High Court that a side letter should be written to the Minister. He alleges that a failed application for refugee status would amount to “a blot on the family escutcheon.”
35. The Minister submits that the Geneva Convention is the cornerstone of the international legal regime for the protection of refugees, and that that position can only be maintained if an application for protection is assessed, first of all, to establish if the applicant in question qualifies as a refugee, with the question of eligibility for subsidiary protection being addressed only where it has been held that he does not. The Minister says that the application for consideration for subsidiary protection, actually submitted by the Applicant, although it has not, in fact, been considered as an asylum application, in the absence of any application to that effect, would, in some respects, come within the scope of the Geneva Convention.
36. The Qualification Directive is not concerned with procedures at all and does not, it is argued, impose any procedural obligation on a Member State to accept such an application merely because a person subjectively considers that he is not a refugee. The only potential relevance to the examination of subsidiary protection applications is to be found in Article 3.3 of the Procedures Directive, which provides that
38. The Minister argues that this interpretation is supported by the travaux préparatoires, i.e., in particular, of article 5(2) of the draft Qualifications Directive. That draft envisaged that a person might make a "stand-alone" application for subsidiary protection, but this provision was removed from the measure as adopted.
39. It is submitted that the Applicant’s argument is inconsistent with the intention of the framers of the Qualification Directive, i.e., to limit the secondary movements of applicants for asylum between Member States caused purely by differences in legal frameworks. An asylum seeker who is dissatisfied with the asylum system in one Member State and is not satisfied with his chances of qualifying for subsidiary protection there, cannot travel to Ireland in the hope of making a "stand-alone" application for subsidiary protection and thereby circumventing the ability of Ireland to return him to the Member State where his initial application was made. For this reason, the Qualification Directive could not require Member States to admit applications for subsidiary protection from persons who had not first sought refugee status and been subject to the screening process envisaged by the Dublin II Regulation.
40. The right to good administration provided for in Article 41 of the Charter, invoked by the Applicant does not operate to impose rights on persons vis-à-vis their interactions with the administrative authorities of the Member States; rather, as is clear from Article 41(1), it imposes rights on persons vis-à-vis their interactions with “the institutions, bodies, offices and agencies of the Union.” In any event, nothing in Article 41, if it applied, would preclude a Member State from requiring a person who wishes to apply for subsidiary protection to first make an application for refugee status. It is argued that this view is supported by the Opinion of the Advocate General, at point 28, in Case C-277/11 M. M. v Minister for Justice, Equality and Law Reform, and others, already cited, where he spoke of the Directives as “establishing a common European asylum system based on the full and inclusive application of that Convention and are intended to assist the competent national authorities to apply the latter by defining concepts and common conditions.”
Consideration by the Supreme Court
41. It is clear that, in Irish law, it is not possible for a person such as the Applicant to make an application for subsidiary protection without having, first, made and failed in an application for refugee status. The Supreme Court has already decided that the Regulations do not confer any power on the Minister to consider an application from anyone other than “a person whose application for asylum has been refused by the Minister …”
42. The result is that an applicant must have the status of a failed asylum seeker before he can even make such an application. The Applicant objects that, firstly, he would have to make statements which he knew to be false in order to go through that process and, secondly, that, at the end, he would be marked as a failed asylum applicant. The response of the Minister is that the question of whether he is entitled to asylum is a matter to be determined objectively and that, in any event, the right to seek subsidiary protection is necessarily subsidiary to and consequent on a determination that the person is not a refugee.
43. The Court considers that the true question at issue is whether the Qualification Directive requires Member States, in their implementing measures, to make it possible for a third country national to make an application for subsidiary protection status without making any application for refugee status. In the case of Ireland, which has not adopted a single administrative procedure, that question becomes one of whether the applicant for subsidiary protection must have applied unsuccessfully for refugee status, before his application for subsidiary protection is considered.
44. The Supreme Court has decided that, in order to determine whether the Minister is obliged to consider the Applicant’s application for subsidiary protection, in the absence of a determination that he is not entitled to asylum, which is the subject matter of the proceedings before the courts, it is necessary for it to establish whether it is compatible with the Qualification Directive for Irish law to provide that an application for subsidiary protection will not be considered unless the applicant has already have applied for and been refused refugee status.
45. Accordingly, the Supreme Court refers to the Court of Justice of the European Union for preliminary ruling in accordance with Article 267 of the Treaty on the Functioning of the European Union the following question:
Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental Rights of the European Union, permit a Member State, to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?