Supreme Court dismisses appeal regarding subsidiary protection status under the Immigration Acts 1999-2004.

THE SUPREME COURT

[Appeal No: 54/2015]

Chief Justice

O’Donnell J.

Clarke J.

MacMenamin J.

Dunne J.

Charleton J.

O’Malley J.

Between/

C.C., A.P., C.C. C. (an infant suing by her father and next friend C.C.) and C.C. (an infant suing by his father and next friend

C.C.)

(for the purposes of this redacted judgment called “Charles”)

Applicants/Respondents

and

The Minister for Justice and Equality, Ireland and the Attorney General

Respondents/Appellants

Judgment of Mr. Justice John MacMenamin dated the 28th day of July, 2016

1. I agree with the judgment and order proposed by Clarke J.

2. This appeal is one of the many hundreds of cases which have come before our courts deriving from the Immigration Acts, 1999 -

2004. In that legislation, Ireland chose to operate what became known as a “bifurcated” system. This involved a separate and

sequential application being made for asylum and for subsidiary protection.

3. It must be accepted that the system had to meet an entirely new problem; one never before encountered in our history. But, the

system, as devised, was unwieldy. It did not serve the interests of the State, or asylum applicants. As is now clear, the application

process could take years in this, and many other cases. The procedures, themselves, and the manner in which they were historically

applied, gave rise to so many judicial review applications that special lists had to be devised, and many judges assigned to deal with

these cases. Those court cases came at a significant legal cost to the State and, ultimately, therefore, the taxpayer. But the human

cost is not so easily calculated; and cannot be conveyed in abstract statistics.

4. This was because the system was counter-productive in its effect. Rather than making decisions, (whether favourable or

unfavourable) in a timely way, it often had the self-defeating consequence of actually dragging out the determination process,

(including judicial reviews and appeals), over a period of years. During that time, asylum applicants lived in a state of suspense, with

no certainty as to their future, and, not infrequently, living in inadequate and substandard accommodation. During these lengthy

periods, inevitably, their circumstances changed, requiring further administrative review.

5. I would await evidence that an effective and speedy decision-making process will necessarily create what some people term a

‘magnet’ effect which attracts what are characterised as economic migrants. I am not persuaded that an inefficient system can have

a “deterrent effect” on what are termed “unmeritorious” asylum applicants. Rather, I suspect, the contrary is true.

6. It must be said that not all applicants have been meritorious, in the sense of being true asylum seekers, as opposed to economic

migrants. There were, also, undoubtedly, abuses of the system. But, whatever the merits of their cases, these people frequently had

young families. The children became established in Ireland. They often knew no other home. The facts of this appeal are an apt

example of this point. One of the children (the fourth respondent), has been resident in Ireland for seven years. He has never lived

anywhere else. The other child, (the third respondent), arrived in Ireland when she was 1 year old. She has never lived anywhere else

since then.

7. Not only did the system give rise to a vast deal of litigation in this country, it also led to a number of references under Article 267

of the Treaty to the European Court of Justice in Luxembourg. This was because issues of European law arose, which could not be

resolved by national courts, without invoking the reference procedure under the Treaty on the Functioning of the European Union.

Over many years, the courts in the State, insofar as they legitimately could do so, sought to give some indication in their judgments

to the manner in which the legislative position might be ameliorated.

8. The facts of this case provide other illustrations of the deficiencies in the present bifurcated system. This appeal concerns

subsidiary protection. The Acts in question provided for a number of points, where administrative decisions had to be made, all of

which might be the subject matter of judicial review. This problem applied both to the asylum process proper, and, as here, to

applications for subsidiary protection. A further oddity in the system was that the threshold for judicial review applications with regard

to subsidiary protection was actually lower than that applicable to review of asylum applications proper. It is hard to understand the

logic of that situation.

9. An immigration system must be capable of enforcement. The High Court decision, which is the subject matter of this appeal, was

made in 2012. Subsequent to that point, as Clarke J. points out, the appellants went “off the radar” of the asylum process. But, in

fact, they continued living in Ireland and they continued to be registered with the Department of Social Protection as having been in

employment in Ireland for much of that intervening time. It is not suggested the State took any action to trace them. It would not

have been difficult.

10. There is now new legislation in the shape of the International Protection Act, 2015. The implementation of that legislation is to be

on a phased basis. We are informed the Act is to be fully operational by the end of this year. It is to be hoped that the stated

intention of this new legislation is fulfilled, and that a coherent, timely, and humane system, is the result. It is very much to be hoped

that a new, and effective system will soon be fully in operation.