Irish law requiring failed asylum status before subsidiary protection application referred to EU Court.

THE SUPREME COURT

JUDICIAL REVIEW

Supreme Court Appeal 87/2011

BETWEEN

H.N.

APPLICANT

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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.

The facts

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 [2009] 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:

• An order quashing the Minister’s decision refusing to consider his application for subsidiary protection status and

requiring him to determine it;

• 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.

10. The Applicant’s application for judicial review was refused in the High Court. He has appealed to the Supreme Court.

Relevant legal provisions

11. Article 78 of the Treaty on the Functioning of the European Union provides:

1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to

offering appropriate status to any third-country national requiring international protection and ensuring compliance with

the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the

Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

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…………………

12. The Qualification Directive includes the following recitals:

(6) The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the

identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum

level of benefits is available for those persons in all Member States.

(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.”

13. Article 2 of the Qualification Directive provides, inter alia:-

(a) ‘international protection’ means the refugee and subsidiary protection as defined in (d) and (f);

(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…

14. Article 4(1) provides:

“Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to

substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member

State to assess the relevant elements of the application.”

15. Article 5(1) provides:

“A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have

taken place since the applicant left the country of origin.”

16. Article 15 provides:

“Serious harm consists of:

…………………………

(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.”

17. Article 18 of the Qualification Directive provides:

“Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for

subsidiary protection in accordance with Chapters II and V.”

18. Section 3 of the Immigration Act, 1999 conferred on the Minister the power to make orders for the deportation of people

including, as provided in s.3(2)(f), “ a person whose application for asylum has been refused by the Minister …”

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:

“(1) ……… these Regulations apply to the following decisions (in these Regulations referred to as “protection decisions”)

made on or after the coming into operation of these Regulations:

(a)

(b)

(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…………………..”

21. Regulation 4 of the Regulations provides:-

“(1)(a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person

to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or

she may, in addition to making representations under section 3(3)(b) of that Act, make an application for subsidiary

protection to the Minister within the 15 day period referred to in the notification.

(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).”

22. Regulation 4(2) is the legal basis upon which the Minister says that the Applicant may not make an application for subsidiary

protection and that he is not obliged to consider it.

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 [2012] 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

1. Applicant’s submissions

25. The Applicant claims that he fears that he risks suffering “serious harm,” as defined, in particular, in Article 15(c) of the

Qualifications Directive, if compelled to return to Pakistan. He cites Case C-465/07 Elgafaji [2009] ECR 1-921 to argue that the

criteria for the grant of subsidiary protection are wider than those which apply to the grant of refugee status.

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):

“Though no specific EU acquis on the issue of subsidiary protection exists, the ECHR and the case law of the European

Court of Human Rights provide for a legally binding framework, informing the Commission's legislative work on this issue.

Partly in response to the case law of the European Court of Human Rights and general principles of international

humanitarian law, Member States have developed schemes of ‘subsidiary’ or ‘complementary’ protection. This Proposal has

drawn from the disparate Member State systems and has attempted to adopt and adapt the best ones. Rather then

creating new ratione personae protection obligations incumbent on Member States, the Proposal is clarifying and codifying

existing international and Community obligations and practice.”

29. The Applicant says that the Regulations do not properly transpose the Qualification Directive into Irish law insofar as they prevent

an application for subsidiary protection from being made by a person who is not a failed asylum seeker. He submits that Regulation

3(1) and 4(2) in particular are incompatible with the Directive.

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.”

2. The Minister’s Submissions

34. The Minister submits that the definition of “person eligible for subsidiary protection” contained in paragraph (2) of Article 2 of the

Qualification Directive provides that this status only applies to a person who does not qualify as a refugee. Further, the Minister

argues that neither the Qualification Directive nor the Regulations permit the Applicant to make a “stand alone” application for

subsidiary protection. Therefore, where a single procedure has not been introduced by a Member State, as in Ireland, a person cannot

qualify for subsidiary protection status unless it has first been determined that the person does not qualify as a refugee.

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

“[w]here Member States employ or introduce a procedure in which asylum applications are examined both as applications

on the basis of the Geneva Convention and as applications for other kinds of international protection given under the

circumstances defined in article 15 of Directive 2004/83/EC they shall apply this Directive throughout that procedure.”

37. Since Ireland has not, in its legislation, provided for such a single procedure, it was entirely within the discretion of the State to

decide that it will accept and process applications for subsidiary protection only from persons who have failed to qualify for refugee

status.

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?