Supreme Court dismisses appeal where applicant refused refugee status before seeking subsidiary protection.

THE SUPREME COURT

87/2011

O’Donnell J.

McKechnie J.

Clarke J.

BEWEEN

HAQ NAWAZ

Applicant /Appellant

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

Respondents

Judgment of the Court delivered by O’Donnell J. on the 27th of March 2015

1 This is the latest round in proceedings with a very tangled history. I propose to set out what I hope is a simplified account of the

proceedings, in order to identify the issue which now arises for determination.

2 By letter of the 7th of July 2009 (almost 6 years ago) Mr Nawaz (who I will refer to hereafter as “the Applicant”) applied for

subsidiary protection. He had not previously applied for refugee status. This is the central and perhaps fixed feature of this case. Mr

Nawaz, through his representatives, has always resolutely contended that he should not be obliged to apply for and be refused

refugee status before applying for or seeking subsidiary protection.

3 On the 27th of July 2009 the first named respondent (who I will refer to as “the Minister”) refused to consider the application

because it did not comply with the Irish regulations which, provided that, in order to be eligible for subsidiary protection, an Applicant

must first have been refused refugee status. The letter from the Minister stated:

“the basis for making an application for subsidiary protection is that the person applying has been refused refugee status

– see section 3(1)(c) of the subsidiary protection regulations the fact of the matter is that your client has not been

formally refused refugee status in that no application respect of him was ever made to the office of the refugee

applications Commissioner. The foregoing being the case an application for subsidiary protection cannot be made by your

client”.

4 The roots of this case lie in the fact that Ireland has what this Court described in Okunade & Anor v. Minster for Justice, Equality

and Law Reform & Ors [2012] 3 I.R. 152 as an unnecessarily complicated statutory regime for the consideration and judicial review of

applications for international protection. In particular, applications for refugee status are decided or processed through the office of

the Refugee Applications Commissioner and applications for subsidiary protection are dealt with by the Minister. That is a procedure

which is capable of causing difficulties for applicants and for decision-makers. Here, the Applicant sought to challenge one aspect of

that regime by insisting that he was entitled to have his subsidiary protection application decided separately, and without going

through what he considered to be a pointless application for refugee status. It is not apparent what practical benefit for the

Applicant there was in maintaining this position as a matter of principle other than the not insignificant fact that it had the

consequence of creating a legal issue which could or would require determination by judicial review proceedings. Those proceedings

are now in being for six years.

5 In the event, proceedings were commenced and on the 12th of October 2009 Cooke J. granted leave to seek judicial review by way

of certiorari quashing the Minister’s refusal to consider the application. The central ground upon which that relief was sought provided

as follows:

“Regulation 3(1) and regulation 4(2) of the European Communities (Eligibility for Protection) Regulations 2006 (SI

518/2006) are unlawful and ultra vires the provisions of the European Communities Act 1972 (No. 27 of 1972) and Council

Directive 2004/83/EC insofar as and to the extent that they provide that the first named respondent is entitled to refuse

to consider the application for subsidiary protection of a person who is not a failed asylum seeker.”

6 It is plain therefore that the issue raised was the legality in European Union law of the two stage procedure provided for by Irish

law. The issue raised by the Applicant could not have been clearer: he maintained that he was not obliged to apply for refugee status

prior to making an application for subsidiary protection. The Applicant also commenced separate plenary proceedings challenging the

constitutionality of that procedure. On the 15th of December 2010, Ryan J. refused the application for judicial review holding that it

was permissible to require an applicant to establish that he was not entitled to refugee status as a precondition to any application for

subsidiary protection. This seemed to follow from the manner in which subsidiary protection was defined. On the 25th of May 2011

Laffoy J. refused the State Defendant’s motion to strike out the plenary proceedings. The issue in that motion was that the State

Defendant’s contended that the Applicant was bound by s.5 of the Illegal Immigrants (Trafficking) Act 2000 to bring proceedings by

way of judicial review.

7 Both decisions were appealed to this Court. On the 29th of November 2012 this Court reversed the decision of Laffoy J. and held

that the constitutional proceedings should be struck out. However, it was indicated that the Applicant should be entitled to amend

the judicial review proceedings to include the constitutional challenge, and in due course that was done by consent. In this way the

Applicant was enabled to escape from the procedural tangle which his proceedings had created, and avoid the possible consequences

of the strict time limit attached to proceedings under s.5, which might otherwise have barred the constitutional challenge.

Consequently, the courts would be able to address the issues raised on their merits.

8 In relation to the substantive challenge, this Court considered that it plainly raised an issue of European Union law which required to

be referred to the European Court of Justice (hereinafter “ECJ”) pursuant to Article 267 of the Treaty on the Functioning of the

European Union. The question posed was as follows:

“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 for 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?”

9 On the 8th of May 2014 the ECJ responded to this question at paragraph 57 of its decision as follows:

“Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification of 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 principle of effectiveness and the right to good administration do not preclude a national

procedural rule, such as that of issuing the main proceedings, under which an application for subsidiary protection may be

considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the

application for refugee status and the application for subsidiary protection at the same time, and, second, the national

procedural rule does not give rise to a situation which the application for subsidiary protection is considered only after an

unreasonable length of time, which is a matter to be determined by the referring court.”

10 It is apparent therefore that the ECJ answered the question posed by this Court in the negative, but with a proviso. The matter

was re-entered before this Court to consider what order should be made to dispose of the appeal in the light of the judgment of the

ECJ. Since the core question in the proceedings was an issue of European Union law the only question was the application of the

ruling of the ECJ to the facts of the judicial review proceedings. Since the facts were not at issue the decision of the ECJ appeared to

resolve the legal issue raised in the proceedings. At one point it seemed possible that the matter might be resolved by agreement

between the parties, but such agreement was not possible and the matter was argued before this Court.

11 On behalf of the applicant, it was argued that the Court should proceed to make an order of certiorari quashing the ministerial

refusal of the 27th of July 2009 on the grounds that the burden of the decision of the ECJ was that Irish law was not compliant with

European Union law because it did not permit for application for refugee status and application for subsidiary protection to be made at

the same time. It was also argued that the result was that Mr Nawaz’s application had been or was likely to be considered only after

unreasonable delay and that he was therefore entitled to damages. He contended not only that he was entitled to an order of

certiorari of the Minister’s decision of the 27th of July 2009, but also, that certiorari would serve a useful purpose since it would have

the consequential effect that his original application would still be extant, and this in turn would mean that a deportation order which

had been made in the interim would become invalid. In response to the Minister’s argument that a present application could be made

for international protection which, if successful, would mean the deportation order would have to be revoked, the Applicant

maintained that this was an unsatisfactory solution because there would have been an extant deportation order which he considered

would constitute a form of black mark against him should he wish to travel to other countries. This in turn led to some almost

theological debate as to the status of a deportation order in the period between the making of the order and its quashing by a court,

on the one hand, or revocation by a Minister on the other.

12 There is no doubt that the bringing of these proceedings and the consequential reference of the question to the ECJ developed

the law in a difficult and technical area. Furthermore it is apparent that Irish law as of July 2009 did not make explicit provision for an

application for both refugee status and subsidiary protection to be made at the same time and ad hoc procedures have now been

introduced to permit this. However, litigation does not exist simply to clarify legal issues. Instead it exists to allow parties to seek and

obtain remedies to which they are entitled as a matter of law. Here the Court must consider what order it should make to resolve the

proceedings between the parties. It is implicit in the applicant’s approach that he accepts that he cannot obtain the original relief of

certiorari of the Minister’s refusal, at least on the grounds upon which it was originally sought. Again, it is implicit in the applicant’s

approach that he contends that it is permissible for the Court to make an order of certiorari and quash the ministerial refusal not on

the grounds sought, but rather on the apparent flaws in the legal regime as identified in the proviso to the determination of the ECJ at

paragraph 57 of its decision.

13 The Minister sought to argue initially that to accede to the applicant’s claim involved an amendment to the grounds upon which he

sought judicial review, which was not permissible at this stage of proceedings. This Court does not accept that this is necessarily the

correct analysis of what is argued for here. There is little doubt that if in judicial review proceedings a court considered the Applicant

was entitled to succeed and obtain the reliefs sought but not precisely in the terms argued, the court could adjust any declaratory

order, or indeed the terms of any order of certiorari, to reflect the court’s determination of the true position, and that this would not

necessarily require any application to amend the grounds. However, the Court considers that the Applicant faces a number of

difficulties with this argument. Even assuming for the moment that it could be said that the legal regime in 2009 was in some way

defective in not making provision for an application for both refugee status and subsidiary protection at the same time, the fact

remains that the Applicant never made such an argument in the High Court or indeed in this Court insomuch as the matter was

ventilated here. Further, and perhaps more fundamentally, the Applicant could not have made such an argument because factually he

was not in a position to do so. Neither he nor his representatives had sought to make a simultaneous application for refugee status

and subsidiary protection. To have made such an application would have involved applying (even simultaneously) for refugee status,

and the clearest point of the Applicant’s argument was that he contended he should not be obliged to apply for that status. The

Applicant’s objection was not one of timing but rather to being required to make any application for refugee status at all. Finally, it

should be said that the assumption which the Applicant makes in advancing this latest argument does not appear to be necessarily

correct. It is not at all apparent that the legal regime in 2009 would not have permitted some form of ad hoc simultaneous application

if that was what an applicant truly sought. But that argument would in any event require detailed analysis of the procedures available

both as a matter of law and fact in 2009. The very fact that those procedures were not the subject of any scrutiny in the course of

these proceedings, and that accordingly it is not possible to say definitively whether or not Irish law precluded a simultaneous

application, only illustrates the fundamental fact that the matters now relied on were not properly part of the proceedings or the

determination of the High Court which is the subject matter of this appeal.

14 The question for this Court is the order which it should make on the appeal in these judicial review proceedings. The law has been

clarified by the decision of the ECJ, but it is not the object of judicial review proceedings merely to clarify the law or to repeat the

clarification provided by the decision of the ECJ. Instead the question for this Court is whether the applicant is entitled to the relief

sought, an order of certiorari of the ministerial refusal to consider his application, on the grounds asserted, or perhaps whether he is

entitled to any relief which can be said to be fairly encompassed in these proceedings. For the reasons set out above, it seems clear

that the Applicant cannot claim to be entitled to an order of certiorari in respect of the Minister’s refusal to consider his standalone

application for subsidiary protection. That refusal was perfectly lawful. The proviso to the opinion of the ECJ also referred to a

requirement that any procedure should not give rise to undue delay. Again the Applicant seeks to rely on this and contends that there

has been unnecessary delay in the processing of his application for international protection, and now seeks damages on account of

such delay. Again however, it appears that this application is misconceived. Since the Applicant here refused to make an application

for refugee status he cannot contend that the procedure adopted in Irish law for separate and consequential determination of refugee

status and subsidiary protection has given rise to undue delay in this case. Such delay as has occurred is due entirely to the judicial

review proceedings initiated by the Applicant on the basis of the legal issue determined by the ruling of the ECJ. The lapse of time

consequent on judicial review proceedings, particularly those which involve an appeal and reference to the ECJ, is something which is

often welcomed by applicants since it almost inevitably strengthens the humanitarian aspect of their application to remain in the

State however that claim is formulated in law. It would indeed be bordering on perverse to award damages to the Applicant for a

delay caused by proceedings which he commenced and which failed and in circumstances where that delay may well have been

regarded as a beneficial consequence of those proceedings, from the applicant’s point of view. In any event it is clear that any lapse

of time cannot be attributed to the operation of the system requiring that subsidiary protection should be considered after the

determination of refugee status, for the obvious reason that the Applicant never participated in that system. He made his objection

at the very outset, raising a point of law giving rise to these proceedings, which, in the light of the ruling of the ECJ, must now be

determined against him. Accordingly, the Court is satisfied that the only appropriate order to make in this Court is one dismissing the

applicant’s appeal. The Court will hear the parties on the question of costs.