High Court dismisses judicial review where quashing the decision offers no practical benefit to the applicant.

Neutral Citation: [2014] IEHC 607

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 736 JR]

BETWEEN/

A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Barr delivered on the 4th day of December, 2014

1. This is a post-leave application for an order of certiorari quashing the respondent’s decision of 1st October, 2013, not to process

his application for subsidiary protection and for an order of mandamus compelling the respondent to consider the applicant’s

application for subsidiary protection pursuant to the provisions of the European Communities (Eligibility for Protection) Regulations

2006 (S.I. No. 518 of 2006) (“the Protection Regulations”), which transposed Council Directive 2004/83/EC of 29th April, 2004, 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 content of the protection granted (“the Qualification Directive”).

Background

2. The applicant is a 39-year-old Somali national. He arrived in Ireland in or around 9th May, 2005, and applied for asylum the

following day. His claim for asylum was rejected by the RAT in a decision dated 25th January, 2006.He was issued with a proposal to

deport by letter dated 13th February, 2006. This letter was sent prior to the coming into force in Irish law of the Qualification

Directive. The Qualification Directive required Member States to enact the laws, regulations, and administrative provisions necessary

to comply with the Directive before 10th October, 2006; the Directive was implemented in Ireland by the Protection Regulations on

10th October, 2006. It was at this point that the facility for the making of an application for subsidiary protection was introduced in

Ireland.

3. On 6th March, 2006, the applicant submitted representations as to why he should be granted temporary permission to remain in the

State. By a decision dated 11th May, 2009, the Minister decided to grant the applicant leave to remain in the State for a period of

one year. This permission has since been extended on a number of occasions. No reason was given for the initial decision to grant the

applicant leave to remain or for the subsequent decisions to renew his permission to remain. The applicant currently has leave to

remain in the State until 13th May, 2015.

4. Having learnt of the subsidiary protection regime, the applicant consulted a solicitor and made a subsidiary protection application

by letter dated 11th June, 2013. On 27th June, 2013, the respondent refused to consider this application. The reason for this refusal

was that, in the respondent’s view, Recital 9 of the Qualification Directive precluded the consideration of a subsidiary protection

application from a person with a right to reside in a Member State. Recital 9 of the Directive provides:

Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States

for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian

grounds, fall outside the scope of the Directive.

No other reason was given.

5. By letter dated 20th September, 2013, the applicant sought a review of the Minister’s refusal to consider his application. However,

the respondent’s position remained unaltered and the applicant was notified of this by letter dated 1st October, 2013. The present

proceedings were then instituted and McDermott J. granted leave to apply for judicial review ex-parte on 14th November, 2013.

The present proceedings

6. The Minister does not now stand over the reason given for not accepting the applicant’s subsidiary protection application

submitted on 11th June, 2013. Instead, the Minister now adopts the position that, in accordance with the interpretation of the

Protection Regulations by the Supreme Court in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44, she had

no discretion to accept an application for subsidiary protection from the applicant since the applicant had no right to apply for

subsidiary protection under the terms of the Regulations.

7. The applicant submitted that the Minister is not, as a matter of law, permitted to seek to change his reasons for a decision once

the decision has been the subject of an application for judicial review. The applicant cites Mullholland v. An Bord Pleanala (No. 2)

[2006] 1 IR 453; EMI Records (Ireland) Limited v. The Data Protection Commissioner [2013] IESC 1; and R. v. City of Westminster

[1996] 28 HLR 819, in support of this argument. Applying these authorities, the applicant contends that the Minister’s advancement of

new reasons before the court in the present proceedings and the abandonment of the sole original reason given is such as to entitle

the applicant to certiorari.

8. The respondent argues that the applicant’s contention that the Minister has substituted new reasons for his refusal in place of the

reason originally stated is misconceived. The respondent submits that what has in fact occurred is that the Minister has now

recognised that, in accordance with the terms of the Protection Regulations as interpreted in the Supreme Court’s decision in

Izevbekhai, she did not have the power to accept the applicant’s subsidiary protection application dated 11th June, 2013.

Accordingly, the respondent argues that the precise reasons given by the Minister for not entertaining the application are ultimately

not material to the question whether or not she was empowered to accept it.

9. The respondent points out that if the court accepts the Minister’s position that she did not have discretion to accept the

application, the court would be acting in vain if it made an order quashing the decision of 27th June, 2013. The respondent states

that the inevitable outcome would be that the Minister would refuse to accept the application again on the basis that the application

had not been made in accordance with the Protection Regulations and that she did not have discretion to accept it. The respondent

submits that in Izevbekhai, the Supreme Court, having found that there was no discretion on the Minister’s part to examine the

applicant’s subsidiary protection application, dismissed the applicant’s appeal without considering the merits of the Minister’s decision.

10. As a preliminary matter, therefore, the court must assess whether the Minister has the power to accept and determine a

subsidiary protection application from the present applicant in light of his particular circumstances.

Does the Minister have the power to consider the applicant’s application for subsidiary protection?

11. The respondent argues that the Minister does not have the power to consider an application for subsidiary protection from an

applicant whose asylum application was rejected prior to the coming into force of the Protection Regulations and where the letter

notifying the applicant of a proposal to deport him also predated the coming into force of the Regulations. This, the respondent

submits, is in accordance with the terms of the Protection Regulations and the Supreme Court’s judgment in Izevbekhai. It is therefore

necessary to give careful consideration to the Regulations and to the Izevbekhai decision.

The European Communities (Eligibility for Protection) Regulations 2006

12. The Protection Regulations were made on 9th October, 2006, for the purpose of giving effect to Council Directive 2004/83/EC of

29th April, 2004, 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 content of the protection granted (“the Qualification Directive”).

They came into operation on 10th October, 2006 (see Regulation 1 (2)).

13. Article 2(e) defines the "persons falling within the scope of this Directive," insofar as it concerns subsidiary protection (see Recital

11) in the following terms:

" '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.."

14. Fennelly J. notes in Izevbekhai that the Directive is expressed in general terms. The learned judge stated:

It does not refer to or attach its obligations to any particular administrative or legal acts or decisions of the Member

States. The mandatory obligation expressed in Article 18 is to grant subsidiary protection to a person eligible for it. In

effect, to be eligible, a person who does not qualify for the status of a refugee must be able to "show substantial

grounds for believing that" he or she would "would face a real risk of suffering serious harm," as defined by Article 15, if

returned to his or her country of origin.

15. Regulation 3 of the 2006 Regulations provides:

3. (1) Subject to paragraph (2), 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) a recommendation under section 13(1) of the 1996 Act;

(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

(c) 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;

(d) a determination by the Minister under Regulation 4(4) or 4(5).

16. Regulation 4 provides:

4.(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).

17. Regulation 3(1) provides that the Regulations apply to certain decisions made on or after the coming into force of the Regulations

on 10th October, 2006. Paragraph (c) of Regulation 3(1) refers to the notification of an intention to make a deportation order under s.

3(3) of the Immigration Act 1999 in respect of a person to whom s. 3(2)(f) of the Act applies.

18. Section 3 (1) and (2)(f) of the Immigration Act 1999 provide:

3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 , and the subsequent

provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-

national specified in the order to leave the State within such period as may be specified in the order and to remain

thereafter out of the State.

(2) An order under subsection (1) may be made in respect of—

(f) a person whose application for asylum has been refused by the Minister.

I now turn to consider the Supreme Court’s judgment in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44.

Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44

19. The appellants in this case were a Nigerian national mother and her two Nigerian national children. The Minister rejected their

asylum applications and made deportation orders in respect of each of them on 23rd November, 2005. The applicants challenged the

deportation orders in the High Court but were unsuccessful. Mrs. Izevbekhai then made an application to the Minister for subsidiary

protection on behalf of herself and her two children, pursuant to the Protection Regulations. The Minister rejected these applications

on the grounds that there was no basis on which he was enabled to exercise his discretion under Regulation 4(2).

20. The Minister’s decisions were challenged in the High Court. McGovern J. applied the interpretation of Regulation 4(2) as laid down

by Feeney J. in N.H. v. Minister for Justice, Equality and Law Reform [2008] IEHC 452,which meant that Regulation 4(2) had

conferred a discretion on the Minister to grant subsidiary protection provided that he was satisfied that there were new or altered

facts or circumstances that showed a change had taken place in the position of the appellants from that which prevailed at the time

the deportation order was made. The Minister had decided there was no such change. McGovern J. was satisfied that the allegedly

new material relied upon by the appellants did not show altered circumstances or new facts but merely amounted to an amplification

of the case. He therefore held that there was nothing irrational in the Minister’s decision to conclude that there were no grounds upon

which he could exercise his discretion under Regulation 4(2).

21. The decision of McGovern J. was appealed to the Supreme Court. On presentation of the appeal it became apparent that the High

Court’s decision was predicated on Feeney J.’s interpretation of Regulation 4(2), as set out in his decision in N.H. v. Minister for

Justice, Equality and Law Reform [2008] 4 IR 452, and which had since been applied in several High Court decisions, but had never

been considered by the Supreme Court. Accordingly, the Supreme Court invited the parties to make submissions on the question as to

whether Regulation 4(2) does in fact and in law confer on the Minister a discretion to grant subsidiary protection to persons in

respect of whom a deportation order had been made and notified before 10th October, 2006, provided that the subject of that

deportation order can satisfy the Minister that there are new facts or altered circumstances which significantly change the position of

the applicant from that which existed at the time the deportation order was made.

22. Fennelly J. stated that for the purposes of the case before the Supreme Court, only para. (c) of Regulation 3(1), which relates to

the proposal to make a deportation order, was relevant. Regulation 3(1)(c) provides:

Subject to paragraph (2), 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:

[...]

(c) 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.

23. Fennelly J held that the intention in this section was clear:

The intention is clear: in future, that is from 10th October 2006, every subject of a deportation order which the Minister

proposes to make after that date is guaranteed the right to make prior representations to the Minister that he or she

runs the risk of exposure to serious harm if deported to the country of origin. On the other hand, persons against whom

deportation orders have been made and notified, though not yet in fact deported are not accorded that right. The

paragraph makes no provision for cases of deportation orders made before 10th October 2006, but not yet notified.

Section 3(3)(b)(ii) of the Act of 1999 obliges the Minister to "notify the person in writing of his or her decision and of the

reasons for it".

24. The learned judge then proceeded to consider Regulation 4(1) and (2) of the Regulations. Having set out the relevant provisions,

Fennelly J. held as follows:

55. Regulation 4(1) imposes a positive obligation on the Minister, but its area of application is limited to cases of

deportation orders which the Minister proposes to make after 10th October 2006. As I have said at paragraph 54, it

makes no provision for deportation orders already made but not notified.

56. As stated earlier in this judgment, the Minister made the three deportation orders in respect of the appellants on

23rd November 2005, which was prior to the coming into operation of the Regulations. He gave notice of these orders on

29th November 2006. Section 3(3) of the Immigration Act, 1999 obliges the Minister to give notice in writing of a

proposal to make a deportation order. The appellants were properly notified. Regulation 4(1)(a) of the Regulations

applies only to a notification of such a proposal. The wording of that provision is capable of applying only to such

notifications given after the coming into operation of the Regulations, i.e. after 10th October 2006.

57. Section 3(2) (f) of the Act of 1999 applies to "a person whose application for asylum has been refused by the

Minister." Regulation 4(2) expresses a negative proposition: it specifies what the Minister is not obliged to do. It contains

no words purporting to confer any positive power or discretion on the Minister. It is the centre of the issue under

consideration.

25. Fennelly J. went on to state at para. 75 of the judgment:

75. In my view, Regulation 3 is crucial and clear in its own terms. It limits the scope of application of the Regulations. It

provides that the Regulations "apply to the following decisions," which it then specifies. For the purposes of the present

case, it is crucial that it limits the scope of the Regulations to cases described in Regulation 3(1)(c) where "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" is communicated after 10th October 2006.

26. The learned judge thus held at para. 86 of his decision:

86. In the final analysis, the appellants support the interpretation of Regulation 4(2) adopted in the High Court decisions

since N.H. v MJELR. That is that the Minister, while not obliged to reconsider deportation orders made prior to the entry

into force of the Regulations, has a discretion to do so in the limited circumstances that the person subject to that

order can point to new facts or altered circumstances which now justify the grant of subsidiary protection, even though

the facts at the time the order was made did not support such a conclusion. The appellants have not pointed to any

provision of the Directive which requires the Member States to adopt any such provision. The Directive does not address

at all the status of prior deportation orders. It does not concern itself with any particular national or administrative

procedures. It confers a right as from 10th October 2006 to be considered for subsidiary protection on the defined

category of persons. It says nothing about persons who have received such consideration prior to that date. It is not

contended in the present case that the State has failed in its obligation to transpose the Directive correctly into Irish

law.

27. Fennelly J. concluded at para. 88:

88. For these reasons, I would hold that Regulation 4(2) of European Communities (Eligibility for Protection) Regulations

(S. I. No. 518) 2006 does not confer on the Minister discretion to reopen or reconsider deportation orders made prior to

10th October 2006 in response to an application from the subject of such an order for subsidiary protection.

Nawaz v. Minister for Justice (Case 604-12)

28. The applicant has sought to argue that the Qualification Directive does not impose any time limit for applications and that eligible

persons may still be eligible if they applied 2 weeks or 2 years after a proposal to deport was issued. In support of this contention,

the applicants rely on the decision of the Court of Justice in Nawaz v. Minister for Justice (Case 604-12). At para. 38 the Court of

Justice stated:

38. It should be recalled that Directive 2004/83 does not contain any procedural rules applicable to the examination of

an application for international protection. It is Directive 2005/85 which establishes minimum standards applicable to

procedures for examining applications and specifies the rights of asylum seekers.

39. However, Directive 2005/85 applies to applications for subsidiary protection only where a Member State establishes a

single procedure under which an application is examined by reference to both forms of international protection, namely

asylum and subsidiary protection (Case C‑ 277/11 M. EU:C:2012:744, paragraph 79).

29. However, it does not seem to me that this judgment assists the applicant’s case in circumstances where I am bound by the

decision of the Supreme Court Izevbekhai.

Decision

30. The applicant in this case was notified of the Minister’s intention to deport him by letter dated 13th February, 2006; this was

before the Protection Regulations came into force on 10th October, 2006. His notification of intention to deport pursuant to s. 3(3) of

the Immigration Act, 1999, did not, therefore, include any reference to the possibility of making a subsidiary protection application.

31. The applicant submits that the Minister’s failure in the years following the 10th October, 2006, to inform the applicant of his

entitlement to make an application for subsidiary protection, which the applicant says he was obliged to do under section 3(3) of the

Immigration Act, 1999, as imposed by Regulation 4 of the European Communities (Eligibility for Protection) Regulations 2006, unlawfully

denied the applicant the opportunity to make such an application to the respondent; and that the respondent is thereby estopped

from alleging that the applicant is out of time to make the application.

32. However, this submission appears to be misconceived: the applicant received a proposal to deport in February 2006, which was

before the coming into force of the Regulations. It is clear from the judgment of Fennelly J. in Izevbekhai that persons who received a

proposal to deport before the coming into force of the Regulations are not covered by the terms of the Regulations and are

consequently not eligible to apply for subsidiary protection.

33. The classes of persons to whom the Regulations apply are strictly limited. The Minister has no discretion to accept applications

from persons who are not specified as eligible in the terms of the Regulations themselves. Fennelly J. stated that Regulation 3 limits

the scope of the Regulations to cases described in Regulation 3(1)(c) where “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” is communicated

after 10th October, 2006.

34. I am satisfied that because the applicant in this case received his notification of intention to deport pursuant to s. 3(2)(f) of the

Immigration Act 1999, as amended, prior to the coming into force of the Regulations, he is not a person to whom the Regulations

apply and, consequently, is not eligible to apply for subsidiary protection. The Minister, moreover, did not have the power to accept

the applicant’s application since he is not an eligible person under the Regulations.

35. The Court must therefore answer the central question posed in these proceedings in the negative: the Minister did not have the

power to accept an application for subsidiary protection from this applicant since he was furnished with a notification of intention to

deport by letter dated 13th February, 2006, which was prior to the coming into force of the Regulations on 10th October, 2006. It is

clear from the Supreme Court’s decision in Izevbekhai that the Minister has no discretion to accept subsidiary protection applications

from persons such as this applicant to whom the Regulations do not apply and that such persons are not entitled to apply for

subsidiary protection.

Did the Minister change reasons?

36. There is a dispute between the parties as to whether the Minister did in fact change her reasons for rejecting the applicant’s

application. The applicant argues that the Minister’s original reason for refusing the applicant’s application for subsidiary protection

was erroneous and that the decision should therefore be quashed.

37. The respondent, however, is no longer standing over the original reason given for rejecting the applicant’s application and has

instead put forward a different explanation as to why the applicant’s application had to be rejected. This explanation is that in

accordance with the Supreme Court’s interpretation of the Protection Regulations as set out in Izevbekhai, the Minister had no

discretion to accept an application for subsidiary protection from the applicant who, in turn, had no right to apply for subsidiary

protection.

38. The respondent submits that the applicant has sought to characterise this as the substitution of new reasons for the decision

made by the Minister in place of the original reasons but that this is not in fact the case. The Minister’s position is that, in

accordance with the terms of the Protection Regulations and the decision in Izevbekhai, she did not have the power to accept the

purported application of the 11th June, 2013. Accordingly, the respondent submits that the precise reasons given by the Minister for

not entertaining the application are ultimately not material to the question whether or not she was empowered to accept it.

39. The applicant maintains that it is not open to the Minister, as a matter of law, to change the reasons for her decision and a

number of authorities were cited in support of this contention.

40. What happened here was that the Minister realised – albeit belatedly – that she lacked jurisdiction to accept and consider a

subsidiary protection from this applicant in the first place, since the Protection Regulations do not permit this applicant to make an

application, and nor do they confer on the Minister a discretion to accept such an application.

41. The Minister in the Statement of Opposition expressly stated that she does not now stand over the reason stated in the letter of

27th June, 2013, based on Recital 9 of the Qualification Directive. I will permit the respondent to advance the argument that she did

not have jurisdiction to entertain an application on behalf of the applicant for subsidiary protection. However, this is a matter which

may be reflected in the appropriate costs order at the conclusion of the proceedings.

Should the court grant certiorari?

42. In this case, by accepting and considering the application, the Minister was, in effect, acting in excess of jurisdiction; she did

something that she did not have the power to do. Her decision is therefore void and of no effect. In such circumstances, the Court

would ordinarily grant certiorari.

43. However, it seems to me that it would be futile to quash the Minister’s decision in the circumstances of the present case because

it would be of no benefit to the applicant. The court cannot grant an order of mandamus compelling the respondent to accept and

consider the applicant’s application because the Protection Regulations, as interpreted by the Supreme Court in Izevbekhai, preclude

the making of such an order: the court cannot order the respondent to do something which she does not, in law, have the power to

do.

44. The respondents rely on The State (Polymark (Ireland) Ltd) v. The Labour Court and The Irish Transport and General Workers’

Union [1987] ILRM 357 in support of their submission that the court will refuse to grant certiorari where to do so would be futile. In

the course of his judgment, at p. 362 of the report, Blayney J. quoted with approval the following passage from the judgment of

O’Higgins CJ in The State (Abenglen) v. Dublin Corporation [1984] IR 381 at p. 393:

In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex

debito justiciae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to

refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not

necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or

defect is established in the impugned proceedings, would be to debase this great remedy.

45. Blayney J. then held, at pp. 362-63:

This passage reaffirms that certiorari is a discretionary remedy, and the conclusion I have come to is that even if there

was a breach of principles of natural justice, the circumstances of the case are such that in exercise of my discretion I

should refuse to make the conditional order absolute.

My principal reason is that the granting of an order of certiorari is not necessary for the protection of the prosecutor’s

legal rights in the sense that it could not in any way protect them. If the determination of the Labour Court is quashed,

this will have no effect on the equal pay officer’s recommendation which I have found to have been validly made. Her

recommendation will remain binding on the prosecutor. In these circumstances the quashing of the Labour Court’s

determination would be pointless. It would in no way alter the position which has resulted from my finding in regard to

the first ground, namely, that there was a valid recommendation made by the equal pay officer which is binding on the

prosecutor.

As well as being pointless, an absolute order would, for the reason I have already given, be of no benefit to the

prosecutor, and this is a relevant consideration to be taken into account in exercising my discretion. This was the

ground upon which Walsh J. based his refusal to make an order of certiorari in the Abenglen case. He said in his

judgment:

If I am correct in this, then an order of certiorari quashing the decision made by the respondents would be of no

benefit to Abenglen. While the Court could make such an order in the present case, the Court in its discretion

could refuse to do so where that would not confer any benefit upon Abenglen. (at p. 397).

46. Having held that the Regulations preclude the Minister from accepting a subsidiary protection application from the applicant, and

do not entitle the applicant to apply for subsidiary protection, I am of the view that quashing the Minister’s original decision would be

of no benefit to the applicant. In light of Blayney J.’s dictum in The State (Polymark (Ireland) Ltd) v. The Labour Court and The Irish

Transport and General Workers’ Union [1987] ILRM 357, it seems to me that in such circumstances the court ought in its discretion to

refuse certiorari.

47. This application for judicial review must be rejected and the reliefs sought are refused.