Supreme Court dismisses asylum appeal except for enmeshment issue pending related joint appeals.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[Appeal No: 222/12]

Clarke C.J.

O’Donnell J.

O’Malley J.

Between/

OLUWASEUN COMFORT OKUNADE AND DANIEL DEMILOLUWA OKUNADE (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND

OLUWASEUN COMFORT OKUNADE)

APPLICANTS/APPELLANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

Judgment of O’Donnell J delivered the 14th day of November 2018

1 This case illustrates many of the unsatisfactory features of the law in Ireland relating to applications for asylum, subsidiary

protection, humanitarian leave to remain, and the procedures for judicial consideration of such matters, with particular reference to

the law relating to subsidiary protection applications as it applied in Ireland in the early years of this century.

2 This case is an appeal against a refusal of leave to seek judicial review by the High Court (Cross J.) delivered in March 2012. It is a

case of almost archaeological interest since it is an artefact which provides an insight into the progress of legal argument on the

question of the status of applications for subsidiary protection (pursuant to Council Directive 2004/83/EC), particularly in the period

between 2006 and 2013, when the matter was regulated in Ireland by the provisions of the EC (Eligibility for Protection) Regulations

of 2006. During that period Ireland operated what has been described as a bifurcated system in that the application for subsidiary

protection was dealt with in a separate system to applications for refugee status. An application for asylum was dealt with by the

Office of the Refugee Applications Commissioner (“ORAC”), with the possibility of subsequent appeal to the Refugee Appeals Tribunal

(“RAT”), before formal decision by the Minister for Justice and Equality, whereas an application for subsidiary protection although

covering much of the same ground, was made directly to the Minister, processed by his or her department, and was not subject to

any appeal, although it was of necessity subject to judicial review. The decision of the Minister while legally separate from the

decision in relation to refugee status, was made after, and with the benefit of, the determination of the ORAC and RAT, and often on

the self-same information.

3 Since the essence of both claims was the existence of a well founded fear of persecution or violence if returned to a country of

origin, the application process often involved a battle of cut and paste, where slabs of country of origin information were submitted

on behalf of the applicant, to be met by even more lengthy responses, all of which often appeared to follow a standard template.

Information relating to the specific applicant was often more perfunctory in its content.

4 The bifurcated process gave rise to a number of systemic challenges, that is challenges which were not dependent on any aspect

of an individual case, but rather challenged the system as a whole. It followed in theory, that such a challenge, if sustainable, could

be raised by any unsuccessful applicant for subsidiary protection. Since any such challenge was made by judicial review, and there

was no special application procedure, leave if granted, on a reasonably low threshold, would mean that a case would then be

processed along with other judicial reviews, in a system already under resourced, and where an appeal would also inevitably give rise

to further delay in an equally, if not more, under resourced process. Since the basis of most challenges was an asserted

incompatibility with the governing EU law, any such challenge also gave rise to the possibility of a reference to the ECJ pursuant to

Article 267 of the TFEU with all the attendant delay. The combination of these factors gave rise to the possibility of significant

gridlock in the system, which in the event transpired.

5 Before turning to the facts of this case, it is helpful I think to trace, in relatively broad outlines, some of the generic challenges

raised in order to place this 2012 case in its proper context. The first issue to gain significant traction and which in turn led to the

grant of leave for judicial review and the making of a reference to the European Court of Justice, is what was described as the

“cooperation point”. It was asserted that the requirement that the application for subsidiary protection be processed in cooperation

with State authorities, imposed an obligation on the Minister to provide a draft of a decision to the applicant and an opportunity to

make submissions thereon, prior to issuing a final decision on the application for subsidiary protection. In May 2011, that issue was

the subject of a reference in a case MM v The Minister for Justice, Equality and Law Reform, [2011] IEHC 547 (High Court, Hogan J.

18th May 2011). In due course the decision on the reference was delivered by the ECJ in a judgment of the 22nd of November 2012

(Case C-277/11). That case rejected the contention that there was an obligation to provide a draft or an opportunity for submission

prior to making a decision, but somewhat unusually offered more general observations on what was described as the importance of

the right to be heard in the bifurcated system. When the case returned to the High Court, Hogan J. loyally applied what he

understood to be the burden of the decision of the ECJ in this latter regard, and accordingly quashed the refusal of subsidiary

protection on grounds that there had been no separate oral hearing and determination. That decision was appealed in due course,

and the Supreme Court considered it was obliged itself to make a further reference to the ECJ to clarify what was required by the

obligation to be heard in the circumstances of an application for subsidiary protection, consequent upon a full consideration of an

application for refugee status. Once again, the ECJ delivered its decision in that regard (Case C-560/14 judgment of the Court

delivered on the 9th of February 2017). Finally, the Supreme Court delivered judgment on the 14th day of February 2018 allowing the

Minister’s appeal and dismissing the claim for certiorari of the refusal of subsidiary protection. This was the end of that strand of the

legal challenge.

6 While the cooperation/right to be heard saga was proceeding in the MM litigation, separate challenges were also being raised in a

number of cases. Two further points which were argued, were a point which has come to be called the “enmeshment point”, together

with an effective remedy point. The latter point, is in essence, that a judicial review of the ministerial decision, is not an effective

remedy for the purposes of the ECHR and/or Article 47 of the TFEU. That is a point of more general application and is not limited to

the asylum/subsidiary protection context and to which it will be necessary to return.

7 The “enmeshment point” arose in the following way. On the determination of the application for refugee status, it appears that any

unsuccessful applicant was sent what has become known as the “three options letter” which set out the entitlement to apply for

subsidiary protection, and humanitarian leave to remain, and the possibility of deportation if there was a refusal of relief under either

heading. As it happened, on the 31st of July 2012 (and accordingly four months after the leave had been refused in this case), Cooke

J. granted leave on this point. He observed that it was questionable that the concept of “enmeshment” was one known to the

vocabulary of administrative law. Nevertheless he considered that an issue arose and granted leave upon a single ground set out as

follows:

“By confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker’s entitlement to

remain lawfully in the State pursuant to s.9(2) of the Refugee Act 1996, has expired and a decision has been taken to

propose the deportation of the applicant under s.3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006

Regulations in conjunction with s.3 of the said Act of 1999, has the effect of imposing a precondition or disadvantage

upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th of April, 2004, and is

incompatible with general principles of European law.” (VJ (Moldova) v The Minister for Justice and Equality & Ors [2012]

IEHC 337).

8 At the same time a more broad based challenge to the system had been advanced before Maureen Clark J. She granted leave on a

number of grounds in two related cases, J.C.M. (DRC) and M.L. (DRC) v The Minister for Justice and Equality, Ireland and the

Attorney General [2012] IEHC 485, both delivered on the 12th of October 2012. Clark J. noted that leave had been granted on the

enmeshment point by Cooke J. and granted leave on a number of grounds set out as follows that: “The procedures applied by the

Minister with regard to subsidiary protection were ultra vires Council Directive 2004/83/EC and breached the general principles of the

law of the European Union in that:

“(1) The applicant was told of his right to apply for subsidiary protection after being told his right to remain in the State

has expired;

(2) The applicant potentially carries findings of lack of credibility with him from the asylum process thereby creating a

negative impression from the outset;

(3) The applicant cannot bring a claim unless he has been informed by the Minister that he is a failed asylum seeker. The

decision to refuse a declaration of refugee status implies that the Minister has already given some consideration to the

case and has made a negative determination in relation to the applicant’s case. This creates an impression of partiality on

the part of the Minister whose officials will also consider the subsidiary protection application;

(4) An application for subsidiary protection is considered during the pre-deportation process, when the Minister has

already formed an intention to consider making a deportation order;

(5) The competence, knowledge, and training of the civil servant assessing eligibility for the subsidiary protection, a

complex legal issue, is not regulated; and

(6) In contrast with asylum applications, the subsidiary protection applications are not considered by a person

independent of the Minister in the performance of his functions.”

9 The three cases VJ (Moldova), ML (DRC) and JCM (DRC), were attempted to be heard together as a test case and commenced in

the High Court before Mr. Justice McDermott. However, the progress of the case was delayed by the complications raised in the MM

case then proceeding in parallel. In the event, judgment was ultimately delivered by Mr. Justice McDermott on the 20th of June 2017.

He dismissed all the claims set out above, but having permitted the applicants to amend the proceedings to raise the MM point, he

followed the decision of the High Court in the MM case, and quashed the refusal of subsidiary protection on the grounds there had

been no separate oral hearing. As already discussed the decision of the High Court in MM was the subject of an appeal to the

Supreme Court, reference to the ECJ, and was subsequently overturned. The decision in ML, JCM and VJ, are the subject of an appeal

to this Court, and are shortly to be heard together with appeals against the refusal of leave to seek judicial review in those cases on

certain other issues. For present purposes it is sufficient to note, that the enmeshment point was decided against the applicants both

as a matter of fact and law, in the High Court, but of course that that matter is the subject of an appeal to this Court.

10 The application in this case of course pre-dated all these events, but must be viewed now through the prism of the subsequent

decisions, and indeed subsequent events. The first named applicant is a Nigerian national who arrived in the State in May 2008. The

second applicant is her son and was born the following month and has lived all his life in this country. Applications for asylum were

made shortly after the arrival of the first named applicant in Ireland, and on behalf of the second named applicant shortly after his

birth. Both applications were refused by ORAC and on appeal by the RAT on the 14th of August 2009, on the basis of country of origin

information. Further adverse findings were made about the credibility of the first named applicant. A proposal to deport letter was

sent to the applicant on the 5th of October 2009. An application for subsidiary protection was subsequently made on the 27th of

October 2009, and at the same time as an application for leave to remain. Voluminous country of origin information was submitted.

The appellants did not raise any new issue before the Minister, but relied on the case that had already been refused by ORAC and the

RAT.

11 The application for subsidiary protection was refused on the 7th of April 2011, and notified to the applicants’ advisors by letter of

the 11th of April of the same year. The determination was a lengthy and comprehensive assessment of the claim. The application was

rejected on grounds of the availability of State protection, internal relocation, and assessment of the objective country of origin

conditions as disclosed in reputable international reports. In addition, the decision noted the substantial adverse credibility findings

made by the Tribunal.

12 It is important to note that at that stage (after the refusal of subsidiary protection) the applicants’ advisors made further

representations to the respondents by letter of the 12th of April 2011, and the 27th of April 2011. Subsequently the application for

leave to remain in the State was refused by the Minister and the applicants notified of this by letter of the 26th of July 2011. A

deportation order was made on the 15th of July 2011 and notified to the applicants on the 26th of July.

13 These proceedings were commenced by an application to seek judicial review both of the deportation order and the refusal of

subsidiary protection. This gave rise to a procedural complication, since challenges to the deportation order were covered by the

provisions of s.5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, and accordingly, were required to be made on notice, to the

Minister. Furthermore, leave could only be granted if substantial grounds were established. A refusal of leave could only be appealed

to the Supreme Court (and now the Court of Appeal) if the High Court Judge certified that the appeal involved a point of law of

exceptional public importance. On the other hand, the subsidiary protection decision was not the subject of any separate statutory

regime. Accordingly, an application for leave to seek judicial review was made ex parte, could be made within three months of the

date of the decision, and refusal could be appealed as of right to the Supreme Court. Both matters were heard together, and as a

result the Court had before it, the replying affidavit on behalf of the Minister. In the event, the High Court refused both applications.

The Court also refused an application for a certificate of leave to appeal to the Supreme Court pursuant to s.5 of the 2000 Act.

Accordingly, the challenge to the deportation order is at an end. However, the applicant also appealed the refusal of leave to seek

judicial review in respect of the decision refusing the subsidiary protection. That matter was originally listed in the Supreme Court.

Following the establishment of the Court of Appeal this appeal was transferred to that court by direction of the Supreme Court.

However, in a number of cases, the direction under Article 64 of the Constitution, has been reversed, and accordingly, this case now

falls to be determined by this Court.

14 Two further features of this case should be noted. The applicants sought in their proceedings an injunction restraining deportation

pending the determination of the proceedings. This was refused, and was appealed to this Court. On the 16th of October 2012 this

Court delivered judgment setting out the test to be applied on an application to seek an injunction restraining deportation: Okunade v

Minister for Justice [2012] 3 IR 152, [2012] IESC 49. Of even more practical consequence from the applicants’ point of view is

however the fact that in 2013 it appears that the deportation order was revoked and the appellants given permission to remain in the

State as of August 2013, based on the first named appellant being the parent of an Irish citizen child. Notwithstanding this, the

appellant wishes to proceed with the appeal on the basis that the status of the appellants would be better if they were successful in

this case, and that this may lead to a grant of subsidiary protection although of course that could not be granted by this Court. It

might appear that, particularly at this remove, the appellants’ status is quite secure, and the prospect of any improvement being

obtained through these proceedings and any renewed application for subsidiary protection must be quite remote, but it is possible

that issues such as the precedential effect of the High Court decision and costs may also be a factor in seeking to have this matter

determined. While as a practical matter the importance of the resolution for the parties in the case may be small, it cannot be said

that the revocation of the deportation order and the grant of a right to remain renders the case moot, and accordingly it must be

considered.

15 The judicial review proceedings sought certiorari of the decision of the respondent to refuse subsidiary protection dated the 7th of

April 2011. There were 13 grounds upon which the relief was sought. The first three grounds dealt with the cooperation point. Ground

4 referred to an alleged failure to provide an effective remedy. Ground 5 referred to the absence of an appeal and contended that it

breached the principles of equivalence and effectiveness on the grounds that it was less favourable than asylum claims. Ground 6

related to an assertion that the first respondent had failed to have regard to the representations. Ground 7 introduced a claim that

the decision was disproportionate. Ground 8 suggested that the representations had been made and the contrary information had

been read selectively. Ground 9 suggested that insufficient regard had been given to the best interests of the child. Ground 10 was in

even more general terms arguing that the respondent had failed to “appropriately consider” all the representations made. Ground 11

returned to the absence of an appeal and contended that it was unconstitutional. It was also argued that the inability of the

applicant to furnish new material to the Court rendered the remedy less than an effective remedy. Ground 12 asserted that the

country of origin information material was insufficient, and Ground 13 made a general allegation that the respondent had taken into

account irrelevant considerations or failed to take into account relevant considerations. The application was grounded on a short

affidavit of the first named applicant which verified the matters set out in a statement of grounds, exhibited the application for

subsidiary protection and humanitarian leave to remain, the refusal of the further representations of the 12th of April and 27th of May

2011 and the deportation order. Paragraphs 9, 10, and 11 made allegations essentially related to the legal arguments that there had

been a failure of cooperation and a failure to forewarn the applicant of the decision and an allegation of inadequate consideration.

The affidavit also sought an injunction restraining deportation. It is perhaps noteworthy that the affidavit did not refer to, or exhibit

the Three Options letter. The affidavit was quite brief and did not rely on any detailed evidence in relation to the applicant’s own

position.

16 I have set these matters out in detail because it is apparent that the legal argument in this case has travelled some way from its

origin. The case does not seem to involve any reference to the particular treatment of the applicants’ case. Rather the grounds

asserted are generic. Furthermore, while the allegation of non-cooperation and lack of an effective remedy are certainly raised, it is

difficult to detect any hint of the “enmeshment” argument. The application and the limited evidence supporting it appear to be in

standard form.

17 It appears from the judgment of Cross J. however that the enmeshment point was raised in the High Court. Accordingly, at

paragraph 5 it is recorded that “it is submitted by the applicants that the Qualifications Directive has been incorrectly transposed so

that the application for subsidiary protection is ‘enmeshed in the deportation process’ ”. It was also formally submitted that the

Qualifications Directive was incorrectly transposed into Irish law, whereby the implementing measures did not require the first named

respondent to cooperate with the applicants”. Cross J. rejected the cooperation point. He acknowledged that although Hogan J. had

expressed severe doubts about the proposition, he had made a reference to the Court of Justice on the issue, but also noted that the

point had been rejected in a number of other High Court decisions. The High Court also rejected the argument that there was breach

of the principles of equivalence or effectiveness by reason of the absence of a right of appeal. However Cross J. recorded the fact

that counsel had sought to introduce a further nuance into the argument by submitting that the applicant for subsidiary protection

was “particularly disadvantaged by the fact that with a separate and distinct application for subsidiary protection to the Minister,

there is a threat of a life long deportation order should the application fail, as the applicant for subsidiary protection can only be a

failed asylum seeker who if he or she fails in the application for subsidiary protection then may be deported”. The High Court

considered that this did not establish a ground for the grant of leave. The Court concluded that there was no substance to the

effective remedy or proportionality arguments.

18 In their submissions on this appeal, counsel on behalf of the applicants have now sought to characterise the enmeshment point as

“a core aspect of the appellants’ case”, pointing out that subsequent to the decision in this Court leave had been granted in a

considerable number of other cases. This is one further example of the way in which arguments in this area tend to mutate over time,

taking on colour from whatever current in the stream of judicial decisions, both in these courts and in the ECJ, may appear to have

the most prospect of success. I do not think that the enmeshment point can be described by any stretch of the imagination as “core”

to the claim made by the applicants. Indeed, it is hard to see that it is properly raised on the pleadings. However, I accept that it

was argued in the High Court, and the respondents have not sought to contend that it is not a matter which can be properly relied on

in this appeal. In addressing that issue, it is desirable to address some further issues. After this case concluded, counsel on behalf of

the appellants sought to deliver further short submissions on the Opinion of Advocate General Bobek in Case C-89/17 Secretary of

State for the Home Department v Rozanne Banger. This was a reference to the ECJ from the Upper Tribunal (Immigration and Asylum

Chamber) in the United Kingdom (McCloskey J. and Judge Rimington) [2017] UKUT 125. In particular the applicant sought to rely on

paragraph 106 of the Opinion where it was recorded that while in general the jurisprudence of the ECHR had found that judicial review

in the common law system was an effective remedy. However, the ECtHR had found violations of Article 6(1) of the Convention where

the reviewing court was precluded from determining “the central issue in dispute or where the domestic courts considered themselves

bound by the prior findings of administrative bodies which were decisive for the outcome of the cases before them, without examining

the issues independently”. The respondent for its part submitted that the Opinion of the Advocate General made it clear that an

effective remedy required a review and certainly not a full appeal pointing to paragraph 113 of the Opinion in the following terms:

“An effective remedy under Article 47 of the Charter does not require, in my opinion, the reviewing court or tribunal to

have the competence to examine new evidence. Nor does it require it to establish facts not presented before the

administrative authority, or to have the power to immediately substitute the administrative decision with its own

judgment.”

Decision

19 In my view the only issue of substance in this appeal is that relating to the so called “enmeshment point”. There may indeed have

been some question as to the correctness of the approach of the trial judge in refusing leave on the cooperation issue in the light of

the fact that another High Court Judge had, however reluctantly, made a reference on that point in MM (see the consideration of this

issue in; IG v Refugee Applications Commissioner [2018] IESC 25.) Here however, the trial judge adverted to the reference, and to

the weight of contrary authority and came to the conclusion which he did. It is not now necessary to address the issue of whether

the trial judge ought to have granted leave on this point because the progress of the litigation in the MM case now resolves that

point decisively against the applicants. Similarly, time has to large extent resolved the question of effective remedy. There is

extensive authority in this Court and in the High Court, most recently in AAA v The Minister for Justice and Equality and ors [2017]

IESC 80, to the effect that judicial review provides a sufficiently searching scrutiny of a decision to constitute an effective remedy in

the jurisprudence of the European Court of Human Rights and of the European Court of Justice. It does not appear to me that the

reference in the Opinion of Advocate General Bobek in Banger should alter that conclusion, particularly in this case. Similarly, in light

of the jurisprudence I do not think that there is now any remaining life in the arguments based on equivalence or effectiveness by

reason of the absence of a direct appeal.

20 Turning then to the enmeshment point, I have already observed that the issue is not raised at least directly in the proceedings as

constituted and certainly cannot be accurately characterised as the core of the applicants’ claim, at least as instituted. Furthermore,

as the respondent points out, it is very hard to see that there is any factual basis in this case upon which such a claim could be

mounted. There was in this case a three month period between the refusal of the application for subsidiary protection and the making

of the deportation order. That period provided ample time for the applicants to leave voluntarily (if that was ever their desire) and to

make further submissions on the question generally and against deportation, which they did, twice. It is possible perhaps to speculate

as to some version of the point that could be mounted on the facts of this case, but I do not think that a court should encourage

speculation as to what might possibly be argued on the basis of somewhat generalised, and often delphic grounds. Furthermore, it

appears that there is little of practical merit in these proceedings in the light of the withdrawal of the deportation order, and the

grant of an entitlement to remain. In that regard it should be noted that the second named applicant is now ten years of age and has

lived all his life in this country.

21 Nevertheless, although the heartbeat may be faint, the enmeshment point is still live in Irish law, to the extent that leave was

granted in the High Court, and even though the issue was fully argued, and the point dismissed by the High Court, it is still the

subject of an appeal which is due to be soon argued in this Court. Accordingly, if the point was properly raised in these proceedings

then I do not think it would be possible to say that it is not at this juncture sufficiently arguable to surmount the relatively low hurdle

in G v DPP [1994] 1 IR 374. However, I think it would be foolish to grant leave to commence proceedings on the mere basis of the

existence of an appeal on the point as the history of claims made in relation to the subsidiary protection regime which existed in

Ireland between 2006 and 2013 shows that the existence of separate proceedings gives rise to a nearly endless prospect of

proliferating proceedings or at least proliferating arguments. It would in my view be pointless formalism to grant leave and allow

matters to proceed in the High Court because there still existed an appeal on the point, when that appeal was likely to be determined

shortly, and when it was also likely that the determination of that appeal would be decisive in this case. Accordingly, I would propose

to dismiss the appeal on all grounds other than the “enmeshment” point. In respect of that point I would adjourn this case to await

the outcome of the joint appeals in VJ and L v The Minister for Justice and Equality, and would propose addressing the question of

the necessity for any further proceedings in this case in the light of that decision.