High Court grants injunction restraining deportation pending subsidiary protection application due to EU effectiveness principle suspending time limits.

Neutral Citation: [2017] IEHC 175

THE HIGH COURT

JUDICIAL REVIEW

[2017 No. 207 J.R.]

BETWEEN

M.A.

APPLICANT

AND

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

RESPONDENTS

JUDGMENT of Ms. Justice O’Regan delivered on the 16th day of March, 2017

Issues

1. The applicant served a notice of motion bearing date the 6th March, 2017 on the respondent seeking a declaration that the

deportation of the applicant at this time would be unlawful together with an interlocutory injunction restraining the deportation of the

applicant until such time as the applicant’s application for subsidiary protection has been lawfully determined.

2. The matter was heard on notice to the respondent on 13th March, 2017.

Submissions

3. The applicant’s application for subsidiary protection is made by way of letter of his solicitors of 5th March, 2017 wherein it is

identified that the applicant arrived in Ireland in 2014 and he fears return to his country of origin (Pakistan) because his former

girlfriend committed suicide and her family blames him for her death. The claim is based upon the fact that the applicant asserts that

his former girlfriend’s family have threatened his family and he has received death threats. He also claims that the police put his name

in a newspaper stating that he was wanted for making his girlfriend commit suicide.

4. When the matter first came before the Court on an ex parte basis I indicated that the detail afforded was not such as to likely

secure an injunction on the principles identified by the Supreme Court in Okunade v. The Minister for Justice & Ors. [2012] 3 I.R. 152.

However when the matter came before the Court on 13th March, 2017 the applicant pursued the matter on the basis of the decision

at the Court of Justice of the European Communities in (Case C-429/15) Danqua v. Minister for Justice & Ors. a judgment of 20th

October, 2016 together with the subsequent decision of the Court of Appeal (Danqua v. Minister for Justice & Ors. [2017] IECA 20)

which was delivered on 6th February, 2017.

5. Counsel for the respondent has agreed that if a valid subsidiary protection application is before the relevant tribunal the applicant

is entitled to remain in this jurisdiction pending the determination of the claim (s.16 (1) of the International Protection Act 2015). The

respondent does not object to the form of application but rather is relying on the letter from the international protection office of

13th March, 2017 suggesting that for the applicant to maintain a valid subsidiary protection application he is obliged to afford a

compelling explanation for the delay in maintaining the application as the application is out of time. The letter identifies that the

applicant was refused refugee status on the 29th September, 2015.

6. Although the parties did argue as to whether or not certain communications were received by the applicant from the respondent

and as to the correct postal address of the applicant, nevertheless it appears to me that the basis of the concession by the

respondent that the form of the application is not at issue but rather an extension of time is required to deem such form to be a valid

application for subsidiary protection it appears to me that issues with the postal address of the applicant are not germane.

7. The respondent has sought to distinguish the within circumstances from that which prevailed in Danqua. It is submitted that he has

never tried to make an application for subsidiary protection until recently (5th March, 2017) whereas the applicant in Danqua did. In

this regard it is stated that Danqua did not sit back whereas there was no communication at all as between the within applicant and

the Minister prior to the applicant’s arrest. The respondent argues that although the fifteen day time limit has been condemned by the

Court of Justice nevertheless there has been delay in maintaining the application for subsidiary protection (although the date upon

which the delay might have first commenced has not been identified) and therefore the applicant is obligated to explain the delay

prior to his application being considered valid.

8. The applicant had been notified by a registered letter of 30th June, 2015 that he was not being granted refugee status.

9. In the Danqua matter the applicant had made an application for refugee status on 13th April, 2010 following which a negative ORAC

recommendation issued on the 16th June, 2010. Subsequently the Refugee Appeals Tribunal upheld the ORAC decision in a decision of

13th January, 2011. The applicant received a letter bearing date the 9th February, 2011 advising her of the fact that she had fifteen

days to apply for subsidiary protection. In that matter apparently the Refugee Legal Services indicated that they would not assist her

in preparing a subsidiary protection application. On 23rd September, 2013 a decision was made to refuse Ms. Danqua leave to remain

on humanitarian grounds and thereafter on 8th October, 2013 she applied for subsidiary protection which was refused on 5th

November, 2013 because of delay.

10. The decision of the Court of Justice which issued on 20th October, 2016 was to the effect that the principle of effectiveness

must be interpreted as precluding a national procedure which requires an application for subsidiary protection within a period of fifteen

working days of notification.

11. The question posed of the Court of Justice was formulated by the Court of Appeal and following the ruling of the Court of Justice

aforesaid the matter came back before the Court of Appeal. At para. 39 of the decision of the Court of Appeal it was held that the

effect of the Court of Justice decision was to hold unambiguously that the fifteen working day time limit governing applications for

subsidiary protection violated the E.U. principle of effectiveness.

12. In my view by virtue of the foregoing there is no question but that the fifteen day time limit has been suspended in respect of all

applications for subsidiary protection.

13. At para. 41 of the judgment of the Court of Appeal it is stated:-

“It follows in turn that the Minister’s decision of 5th November, 2013 which refused to permit the applicant to make an

application for subsidiary protection on this ground must be quashed. I would accordingly allow the appeal on this ground

and grant the appropriate order of certiorari.”

Conclusion

14. Given the fact that the fifteen day time limit within which an application for subsidiary protection following notification of a refusal

of refugee status must be made is contrary to E.U. law then the respondent has not in place any time limit at present which might

identify a date upon which this Court might consider thereafter a delay has occurred. I am satisfied that it is not appropriate for the

Court to identify such a date in the absence of some procedural measure being put in place by the respondent limiting the time in

which an application for subsidiary protection might be made. In the circumstances the detail of the current applicant are sufficiently

similar to the status of Ms. Danqua that the respondent can not now validly state that the unknown time limits have passed so that it

is for the applicant to establish good grounds for the delay.

15. Given that no issue is taken with the form of the application for subsidiary protection and further given that the respondent

accepts that if a valid application for subsidiary protection exists then the applicant has an entitlement to remain in the jurisdiction

pending a conclusion of his application, the issue herein is as to whether or not delay has occurred and must be explained.

16. I am satisfied in all of the circumstances that the respondent is not entitled to suspend recognition of the application for

subsidiary protection until such time as the applicant has put forward compelling reasons for the delay and accordingly it appears to

me that it is appropriate to grant an interlocutory injunction restraining the deportation of the applicant until such time as his

application for subsidiary protection, made by letter of a solicitor of 5th March, 2017 has been lawfully determined, in order to

safeguard the applicants rights – s.16(1) of the International Protection Act 2015 provides an entitlement for permission to remain in

the State pending an exoneration of an application for international protection.