Other Protection

Cases

 

X.Z. (China) v The Minister for Justice and Equality & ors

(Approved) [2018] IEHC 183 (23 March 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 183JUDICIAL REVIEW[2018 No. 216 J.R.]BETWEENX. Z. (CHINA)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, THE CHIEF INTERNATIONAL PROTECTION OFFICER, THE ATTORNEY GENERAL ANDIRELANDRESPONDENTJUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of March, 20181. The applicant arrived in the State from China via Malaysia in June 2011 and was detained at Dublin Airport. He then applied forasylum on 17th June, 2011. In these proceedings, the applicant’s sister has averred that he stated that the asylum applicationrelated to his membership of Falun Gong. In fact, the s. 8 interview has been produced and it clearly involves a claim that theapplicant was a persecuted Catholic in China. On 8th July, 2011, an interview was scheduled but the applicant did not appear, nor didhe complete the questionnaire and his application was deemed withdrawn on 19th July, 2011.2. A deportation order was made on 12th March, 2012. An amended deportation order was made on 27th March, 2012, which providedfor two aliases for the applicant as well as his original name. That order was not challenged.3. On 2nd October, 2017, the European Union (Subsidiary Protection) Regulations 2017 (S.I. 409 of 2017) came into force allowing a30-day time limit for a subsidiary protection application from certain persons who did not have a previous effective opportunity toseek such protection. That period expired no later than 13th November, 2017.4. Regulation 6(4) allowed an extension of time if (a) special circumstances existed as to why the application could not have beenmade in time and (b) it would be unjust not to allow the application to be made.5. On 13th February, 2018, the applicant was arrested under s. 5 of the Immigration Act 1999. On 22nd February, 2018, his solicitorattended him in Cloverhill Prison and on the same date he lodged an application for subsidiary protection, claiming to be involved withFalun Gong. That application was received on 26th February, 2018.6. The application gave no explanation as to why it could not have been made earlier as required by reg. 6(4) of the 2017Regulations.7. On 27th February, 2018, the applicant was informed that his application was out of time and was informed that reasons wererequired for a late application. On 28th February, 2018, the application was formally rejected on the grounds of failure to set out suchexceptional reasons.8. On 12th March, 2018, the applicant applied for and was granted leave to seek judicial review, the primary relief sought beingcertiorari of the decision of 28th February, 2018. I also granted an interim injunction until 13th March, 2018, restraining the removalof the applicant from the State.9. The applicant then applied for an interlocutory injunction and I heard helpful submissions from Mr. Gavin Keogh B.L. for theapplicant, and Ms. Eilis Brennan B.L. for the respondent. On 13th March, 2017 I declined to grant that order and I now give moredetailed reasons for having done so.Evidence received10. On behalf of the applicant, I received an affidavit of Mr. Donal Quigley, Solicitor, grounding the leave application and an affidavitof the applicant’s sister of 13th March, 2018.11. On behalf of the respondent, I received an affidavit of Mr. Tom Doyle, Assistant Principal in INIS, and Mr. Phillip O’Sullivan of theInternational Protection Office; and oral evidence from Ms. Ann-Marie O’Reilly, HEO in the Legal Service Support Unit as to theapplicant’s s. 8 interview under the Refugee Act 1996.Application of Okunade criteria12. The criteria for a deportation injunction are set out in the Supreme Court decision in Okunade v. Minister for Justice, Equality andLaw Reform [2012] IESC 49 [2012] 3 IR 152, per Clarke J.13. Factors against the applicant are:(i). Firstly, the weight to be attached to the unchallenged deportation order.(ii). Secondly, in terms of an assessment of the strengths and weaknesses of the applicant’s case, on the basis of thelimited argument I have heard so far, the case seems to be of limited strength insofar as it appears at this point in time. Ishould add that that may of course change on substantive argument in which case the applicant can be brought back.(iii). Finally, the applicant’s failure to apply for injunctive relief immediately on his arrest on 13th February, 2018, and thefact that that application was not made until 12th March, 2018, in the context of a proposed deportation on 14th March,2018, certainly does not help his position.14. In terms of factors in favour of the applicant I would view the position as follows:Page 2 ⇓(i). The weight to be attached to consequences to the applicant in the event of deportation seems limited given that hiscredibility is in tatters, in the light of the co

mpletely inconsistent nature of the applications for protection made, the factthat he appears to have told his sister incorrectly that the original application related to Falun Gong, the failure to pursuethe asylum application and the fact that the subsidiary protection application was only made when in custody and thus isprima facie abusive.(ii). In terms of the impact of the consequence of the deportation order on the applicant’s partner and children, very littleinformation has been put before the court in this regard. The partner, who apparently is also unlawfully present in theState, is not referred to in the subsidiary protection claim as a dependent. The two children appear to have been born inNorthern Ireland according to Mr. Keogh, thus at least raising the question as to how that came about and perhaps as towhere they are ordinarily resident. No information whatsoever in this regard is put on affidavit, and indeed nothing isreferred to as to the consequences for the partner and children in relation to deportation apart from the sister’s avermentthat she is concerned about those unspecified consequences.15. On balance, therefore, it seems to me that the factors against the applicant outweigh those in his favour. Although in principle Iwould give due weight and regard to the consequences to the partner and children by virtue of K.R.A. and B.M.A. v. Minister forJustice and Equality [2017] IECA 284 (Unreported, Court of Appeal, 27th October, 2017), those consequences (whether or not theyare automatically decisive) have only minimal evidential support in this case.Order16. For those reasons, the order I made on 13th March, 2017 was to decline to continue the injunction against the deportation of theapplic ant .

G.E.O. (Nigeria)(an infant) v The Minister for Justice & Equality & ors

 

(Approved) [2018] IEHC 131 (08 March 2018)
VIEW[2017 No. 771 J.R.]BETWEENG.E.O (NIGERIA) (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND R.O.)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, THE GARDA NATIONAL IMMIGRATION BUREAU, IRELAND AND THE ATTORNEYGENERALRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of March, 20181. The applicant’s mother arrived from Nigeria in 2006. Her asylum and subsidiary protection applications were refused and adeportation order was made against her on 8th November, 2007. The mother says she formed a relationship with a Mr. G.N., as aresult of which the applicant was born. The relationship broke up; seemingly as a result.2. The applicant was born on 18th June, 2012 and now claims to be an Irish citizen by virtue of s.6A of the Irish Nationality andCitizenship Act 1956 as inserted by the Irish Nationality and Citizenship (Amendment) Act 2004, section 4. The general rule is set outin s.6A(1) that “A person born in the island of Ireland shall not be entitled to be an Irish citizen unless a parent of that person has,during the period of 4 years immediately preceding the person’s birth, been resident in the island of Ireland for a period of not lessthan 3 years or periods the aggregate of which is not less than 3 years.” That rule is subject to a complex series of qualifications setout in the section.3. The applicant contends that (a) Mr. G.N. is his father and (b) Mr. G.N. was lawfully resident in the State for three years prior tothe birth. The next friend says she has attempted to obtain evidence of this and has written to the applicant’s father (without reply),made representations to the Minister and made a number of applications to the District Court, which I will come to.4. On 20th March, 2013 the Irish Naturalisation Immigration Service said in relation to the mother’s application to remain on the basisof parentage of an Irish citizen child that it was a fundamental requirement to submit evidence of identity and nationality in the formof a current valid passport. On 26th July, 2013, the District Court made a maintenance order and a further order on 21st November,2013 as against Mr. N. The court made an order dispensing with his consent to the issue of passport on the 30th February, 2014 anddirected the issue of the passport by order of the 4th March, 2014. Subsequently, the Minister reiterated the need for the productionof a passport; for example by letter dated the 13th January, 2015.5. A separate deportation order was made in respect of the applicant on 22nd January, 2016, which was not challenged inaccordance with s.5 of the Illegal Immigrants (Trafficking) Act 2000, or indeed at all.6. On 14th July, 2017 the Department of Foreign Affairs and Trade wrote in relation to a passport application for the applicant statingthat they required the father’s passport showing reckonable residency stamps from 18th June, 2008 to 18th June, 2012 or a letterfrom the GNIB giving information as to the reckonable residency stamps.7. On 9th August, 2017 the Minister rejected an application to revoke the deportation orders under s. 3(11) of the Immigration Act1999, and again that decision was not challenged.8. On 5th October, 2017 the applicant’s solicitors wrote to INIS requesting a letter in relation to the father’s residency, and similarcorrespondence was also sent to the GNIB. On 9th October, 2017 the GNIB replied indicating that the Data Protection Act 1988prohibited them from divulging information to third parties other than legal representatives of such parties. On the same date, theINIS wrote indicating that they were also precluded from divulging information under s.19 of the Refugee Act 1996 and the DataProtection Act.9. On 11th October, 2017 the application for leave in the present proceedings was formally opened. On 23rd October, 2017, I grantedleave. Following the formal issue of the proceedings, a statement of opposition was delivered dated 4th December, 2017. Paragraph10 of that statement pleaded that no application had been made under s. 28 of the Irish Nationality and Citizenship Act 1956 for acertificate of nationality. On 7th January, 2018 the applicant wrote to apply for a certificate of nationality without prejudice to theproceedings. That was sent incorrectly to the Repatriation Unit, but ultimately made its way to the appropriate officials. On 19thJanuary, 2018 the respondents wrote to the applicant’s solicitors stating that “the proceedings were clearly brought in ignorance ofs. 28 of the Irish Nationality and Citizenship Act 1956”, which Mr. Paul O’Shea B.L. for the applicant essentially confirmed byaccepting that he was not aware of the section when the proceedings were instituted. The respondents also offered an undertakingnot to enforce the deportation orders until the expiry of fourteen days from the determination of any s. 28 application that might bebrought promptly.10. I have heard helpful submissions from Mr. O’Shea for the applicant and from Mr. Daniel Donnelly B.L. for the respondents.Relief sought11. The applicant seeks declarations regarding the implementation of the deportation order and the legal position in relation to thequestions raised by the proceedings. It can be noted that no challenge is made, or indeed possible, to either of the deportation ordersat this stage. There is at the least a significant question mark as to whether the court could make declarations or grant injunctionsrestraining an unchallenged deportation order in the manner sought outside of the scheme provided for by s. 5 of the 2000 Act. It canalso be noted that no mandatory orders regarding the furnishing of information by the applicant are sought that might enable him toobtain a passport or demonstrate his citizenship. Mr. Donnelly submits that the “quixotic nature” of the proceedings is demonstratedby the fact that the relief sought in the amended statement of grounds delivered on the hearing date seeks a declaration that thefailure by the respondents to have a regime whereby the asserted citizenship of the applicant can be properly examined is in breachof the applicant’s rights, whereas it is simultaneously accepted that there is such a regime.Page 2 ⇓The availability of an alternative remedy12. An applicant does not get to the merits of their case unless they can get over the problem of whether there is an alternative,more suitable remedy. That is an issue that applies even at the leave stage, as stated by Finlay C.J. in G. v. DPP [1994] 1 I.R. 374, at377 to 378. One of the requirements of instituting judicial review proceedings is to demonstrate “that the only effective remedy, onthe facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be analternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method ofproc edure”.13. The latest comprehensive consideration of the issue of alternative remedies by the Supreme Court is in EMI Records (Ireland) Ltd.v. Data Protection Commissioner [2012] IEHC 264 [2013] 2 I.R. 669 where the Supreme Court endorsed the principle that, while thegeneral rule was that a party should pursue a statutory appeal rather than initiate judicial review proceedings, there were exceptionswhere the justice of the case would not be met by confining a person to the statutory appeal and excluding the judicial reviewoption; citing The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381, McGoldrick v. An Bord Pleanála [1997] 1 I.R.497, Stefan v. Minister for Justice [2001] 4 IR 203, O’Connor v. Private Residential Tenancies Board [2008] IEHC 205 (Unreported,Hedigan J., 25th June, 2008) and Koczan v. Financial Services Ombudsman [2010] IEHC 407 (Unreported, Hogan J., 1st November,2010).14. Mr. O’Shea submits that the alternative remedies issue arises primarily in the context of an appeal but it is clear from theformulation in G. v. DPP, which has been endorsed on many occasions in subsequent case law (see e.g. Riordan v. Ireland [2002] IEHC 42(Unreported, McKechnie J., 14th February, 2002) paras. 9-12, O.O. v. Minster for Justice and Equality [2008] IEHC 325(Unreported, Hedigan J., 22nd November, 2008) para. 14) that the question of the availability of an alternative remedy and the needto establish that judicial review is the most appropriate remedy is wider than the context of a formal appeal and could apply to anyother procedure provided that it is genuinely a more suitable remedy.15. Applying this to the facts of the present case, Mr. O’Shea accepts that the grant of a s. 28 declaration would resolve hisproblem. He is concerned about delay and cost but whatever the cost is it will be significantly less than court proceedings. He alsocomplained about the uncertainty of the process, such as whether the Minister would seek a DNA test. He says it is obvious that thefather will not cooperate and that will “lead him down to another difficult situation”. It seems to me that that objection isspeculative. The Minister will have to act lawfully and constitutionally, in accordance with the principles set out by the Supreme Courtin East Donegal Co-Operative Livestock Mart Ltd. v Attorney General [1970] I.R. 317 104 I.L.T.R. 81. Mr. O’Shea submits that a DNAtest is “frightening for us” and “a road to nowhere”, but of course the onus of proof of the descent of the applicant from a lawfulresident is on the applicant. Whether one goes down the passport route or the certificate of nationality route, the applicant cannotget either unless he proves his descent from Mr. N.16. Mr. O’Shea suggested that there was some sort of difference between the issue of a passport and the issue of a certificate ofnationality and that the proofs for the former were easier in the sense that the passport office would not necessarily investigatematters such as DNA. It seems to me there is no legal basis for such a submission as the applicant cannot get either a passport or acertificate of nationality unless he establishes that he is a citizen. If the s. 28 declaration is refused, the applicant is not worse offthan he is now and can challenge the refusal if he has grounds to do so at that particular time. Mr. O’Shea’s main complaint is that hewas directed down the road of applying for a passport and that the Minister in correspondence did not make any reference to the s.28 issue prior to the issue of the proceedings. That may well be a valid complaint up to the point in time at which the s. 28 issue wasraised but given that we are where we are now it is clear to me that the s. 28 process is the more convenient remedy, or to put thesame point differently, that the applicant has failed to demonstrate in accordance with G. v D.P.P. that the application by way ofjudicial review is on all the facts of the case a more appropriate method of procedure.Order17. Given that situation, I will dismiss the proceedings. The order will note that it is accepted by the respondent that the applicantwill not be disadvantaged in the s. 28 application by having unsuccessfully prosecuted the present proceedings.

C v The International Protection Appeals Tribunal & anor

 

[2018] IEHC 755 (21 December 2018)

Judgment
Title:
C v The International Protection Appeals Tribunal & anor
Neutral Citation:
[2018] IEHC 755
High Court Record Number :
2018 No. 516 JR
Date of Delivery:
21/12/2018
Court:
High Court
Judgment by:
Barrett J.
Status:
Approved
[2018] IEHC 755
THE HIGH COURT
2018 No. 516 JR
C.
Applicant
v.
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY
Respondents
JUDGMENT of Mr Justice Max Barrett delivered on 21st December, 2018.
1. On (i) one set of evidence in one application (‘Evidence A’), IPAT concluded that Mr O, a subsidiary protection applicant, had established he is gay; (ii) another set of evidence in a separate application (‘Evidence B’), IPAT concluded that Mr C, a subsidiary protection applicant, did not establish he is gay. Evidence A/Evidence B respectively included, inter alia , what IPAT was entitled to (and did) find, in each application, was partly inconsistent evidence from Mr C/Mr O about a claimed gay relationship between the two men. Mr C seeks, inter alia , an order of certiorari quashing the IPAT decision concerning him.
2. The two applications did not feature, ” the same facts ” ( JN v. Minister for Justice [2009] 1 IR 146, para.16), ” all but identical facts ” ( EG v. Refugee Appeals Tribunal [2008] IEHC 400, para.32), or ” similar facts ” ( McMahon v. Leahy [1984] IR 525, 537). They were different applications, yielding different decisions on different evidence. Unless one proceeds on the flawed basis that: the two applications featured largely similar evidence (they did not); and/or that IPAT, when determining Mr O’s application made a finding as to Mr C’s sexuality (it did not), there was no obligation on IPAT, when deciding Mr C’s application, to explain its alleged ‘departure’ from the decision in Mr O’s case. (As to stare decisis , it does not apply to IPAT ( JM (Malawi) v. The International Protection Appeals Tribunal and anor [2018] IEHC 663, para.9)).

3. The impugned decision indicates that Mr O’s evidence (at Mr C’s appeal) was considered credible as to his own sexuality, but that Mr C’s general credibility was not established. No legal flaw presents in this: Mr C’s application was his to establish; Mr O aimed to provide corroborative evidence; IPAT validly reached its conclusion concerning Mr C by reference to all of Evidence B. The form of reasoning as offered in the impugned decision accords with e.g., Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3 and Mallak v. Minister for Justice, Equality and Law Reform [2012] 3 IR 297.

4. Two further points remain. (1) Mr C initially received a negative recommendation under s.13 of the Refugee Act 1996. Under s.70(2)(c)(ii) of the International Protection Act 2015 that negative recommendation is deemed a recommendation under s.39(3)(b)/(c). Mr C contends that as the impugned decision affirms ” the recommendations made…pursuant to section 13 of the Refugee Act 1996 and the International Protection Officer pursuant to section 39(3)(c) “, there is error on the face of the record. The court respectfully disagrees: IPAT merely affirmed what was before it. (2) Mr C contends that IPAT, when considering his application, placed excessive weight on the discrepancy between the two men’s evidence as to the physical relationship between them (if such there was). No leave for review on this ground was granted.

5. It follows that all the reliefs sought must respectfully be refused.

L v Minister for Justice & Equality & anor

and M v Minister for Justice Equality & anor and J v Minister for Justice Equality & anor [2019] IESC 75 (31 October 2019)

Page 1 ⇓O’Donnell J.MacMenamin J.Dunne J.Charleton J.O’Malley J.[S:AP:IE:2017:000174][S:AP:IE:2018:000088]BETWEENV.J.APPLICANT/RESPONDENTANDTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTS/APPELLANTS[S:AP:IE:2017:000175][S:AP:IE:2018:000089]BETWEENM.L.APPLICANT/RESPONDENTANDTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTS/APPELLANTS[S:AP:IE:2017:000176][S:AP:IE:2018:000087]BETWEENJ.C.M.APPLICANT/RESPONDENTANDTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTS/APPELLANTS[S:LE:IE:2012:000505]BETWEENM.L.APPLICANT/APPELLANTANDTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTS[S:LE:IE:2012:000506]Page 2 ⇓BETWEENJ.C.M.APPLICANT/APPELLANTANDTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJudgment of O’Donnell J. delivered the 31st day of October 2019.Introduction1 These cases have a very complex procedural history and raise a number of points aboutthe regime for decisions on applications for subsidiary protection which applied in Irelandbetween 2006 and 2013, and which has given rise to much litigation and criticism both inthe Irish courts and in the Court of Justice of the European Union (“CJEU”). During thatperiod, Ireland operated what has been described accurately as bifurcated system. Thatmeant that, notwithstanding the obvious similarities between the criteria for a grant ofasylum and those for subsidiary protection, applicants for asylum were first dealt withunder a statutory scheme which established the Office of the Refugee ApplicationsCommissioner (“ORAC”), and an appeal to the Refugee Appeals Tribunal (“RAT”) resultingin a formal decision of the minister to grant or refuse asylum. Under the provisions ofS.I. No. 518/2006 – European Communities (Eligibility for Protection) Regulations 2006(“the 2006 Regulations”), subsidiary protection was designed to be granted to a personwhose application for asylum had been refused, and accordingly it was only at that pointthat an application for subsidiary protection might be made. Such an application wasmade to the Minister, and in practice considered by his or her departmental officials. Likethe decisions of both the ORAC and the RAT, the Minister’s decision was subject to judicialreview. The complexity of these procedures provided fertile ground for legal challenges,and since the relevant law implemented the law of the European Union, such challengescould and did lead to a number of references to the CJEU.2 It is a feature of the law relating to immigration that legal challenges by way of judicialreview tend to be generic. The challenge to the validity of the decision often concerns apoint of law which may be of general application. Accordingly, if leave is granted forjudicial review, the consequence may be that a raft of subsequent identical challengesraising the same point are raised in other cases, which often has the effect of creatingsignificant blockages in the asylum and subsidiary protection processes and in the courts.Since, however, the individual applicants are often represented by different lawyers, theprocess is an organic one. Not all the points that are raised are developed in the sameproceedings, or in the same way. Where the matters come before the High Court,substantial efforts are made to attempt to isolate and determine points which govern asignificant number of cases, but the appeals in these cases are a cautionary tale in thedifficulty in managing such disputes and bringing them to a clear conclusion.3 In order to understand the issues which remain for resolution in these appeals, it isnecessary to trace the course of three separate streams of litigation on issues relating toPage 3 ⇓subsidiary protection, only two of which are, however, directly involved in theseproceedings.V.J.4 In the first case, V.J. arrived in the State from Moldova on 18 October 2008. He soughtasylum in Ireland based on a fear of persecution in Moldova for reasons of politicalopinion or activity. The persecution alleged involved threats of harm to himself and hisfamily after his wife, a member of an opposition party in Moldova, attempted to publishan article implicating the son of the country’s president in illegal cross-border trade indrugs and alcohol. His wife had arrived in Ireland in 2006, and they have one childtogether here. His other children were in Moldova.5 V.J.’s application for refugee status under s. 17 of the Refugee Act 1996 (as amended)(“the 1996 Act”) was refused by letter dated 24 September 2009, for lack of credibilityfollowing on an adverse decision of the RAT. The letter from the Minister informing V.J. ofthe refusal of his application for refugee status was in standard terms, and offered theapplicant the opportunity of leaving the State voluntarily or consenting to a deportationorder, and informed him of his right to apply for subsidiary protection and/or makerepresentations to the Minister seeking permission to remain temporarily in the State inaccordance with s. 3(3)(b) of the Immigration Act 1999 (as amended) (“the 1999 Act”).6 V.J. duly applied for subsidiary protection under the then applicable 2006 Regulations,and, in the alternative, for permission to remain in the State temporarily, by anapplication dated 15 October 2009. He was notified that the Minister had, however,determined that he was not a person eligible for subsidiary protection by letter dated 5April 2012, on the basis that his claim was not credible, and having regard to relevantcountry of origin information. He was accordingly notified on 10 May 2012 that theMinister had decided to make a deportation order in respect of him under s. 3 of the 1999Act, requiring him to leave the State on 27 May 2012.7 On 31 July 2012, the High Court (Cooke J.) (see [2012] IEHC 337) granted V.J. leave toseek judicial review of the decision refusing him subsidiary protection. The sole groundwas formulated by the judge as follows:-“By confining the right to apply for subsidiary protection to the circumstance inwhich the asylum seeker’s entitlement to remain lawfully in the State pursuant to s.9(2) of the Refugee Act 1996 has expired and a decision has been taken to proposethe deportation of the applicant under s. 3(3) of the Immigration Act 1999,Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of1999, has the effect of imposing a precondition or disadvantage upon a subsidiaryprotection applicant which is ultra vires Council Directive 2004/83/EC of the 29thApril, 2004, and is incompatible with general principles of European Union law.”8 This point has been referred to colloquially as the “enmeshment point”, and to avoidadditional confusion I will so refer to it in these proceedings.Page 4 ⇓M.L. and J.C.M.9 Both M.L. and J.C.M. were asylum seekers who arrived in Ireland from the DemocraticRepublic of the Congo (“the DRC”). M.L. arrived the on 24 September 2008. He soughtasylum in Ireland based on his fear of persecution should he returned to his country oforigin, arising out of the death of the wife of an army colonel in the health centre wherehe worked. He alleges that he and his sister, a nurse at the centre, were arrested anddetained pending trial in a military court, during which time he was forced to watch hissister being raped by guards. It is alleged that he and his sister are from Bas Congo andof a minority Mundibu ethnicity, whereas the country is controlled by persons of Swahiliethnicity.10 M.L.’s application for refugee status was refused by letter dated 10 January 2011, againon the basis that his claim was not credible. He applied for subsidiary protection on 21January 2011, but was notified that the Minister had determined that he was not a personeligible for subsidiary protection by a decision letter dated 25 July 2011. On 10 August2011 his application for leave to remain was considered, and on the same day it wasdetermined that a deportation order should be made in respect of him. The deportationorder was signed on 11 August 2011, and notified to the applicant on 18 August 2011.11 J.C.M. also arrived in the State from the DRC, in his case on 6 February 2009. Hisapplication for asylum was based on his claim to have been a member of the Armée de lavictoire/Save the Congo religious movement established by Ferdinand Kutino, and workedas a driver for Mr. Kutino’s wife. He claims that he was arrested by the authorities at aprotest and detained without charge for a number of months, during which time he wasthreatened and beaten. He further claims he was released on agreement that he wouldpoison Mr. Kutino’s wife, but was unable to do so, and thus fled the DRC in fear of his life.12 J.C.M.’s application for asylum was refused on grounds of lack of credibility, and wasconsequently refused by the Minister on 22 September 2010. He applied for subsidiaryprotection and leave to remain under s. 3 of the 1999 Act on 6 December 2010. Hisapplication was duly refused by letter dated 25 July 2011.13 Although the cases were factually unconnected, the applications for leave to seek judicialreview in M.L. and J.C.M. were heard together, primarily because the applicants wererepresented by the same legal team, and had filed identical legal submissions.14 On 12 October 2012, the High Court (Clark J.) (see [2012] IEHC 485) granted theapplicants in both cases leave to seek judicial review of their subsidiary protectiondecisions on the following grounds:-“The procedures applied by the Minister with regard to subsidiary protection areunfair and in breach of natural and constitutional justice, and ultra vires CouncilDirective 2004/83/EC and in breach of general principles of the law of the Union, inthat:Page 5 ⇓(1) The applicant is told of his right to apply for subsidiary protection after being toldthat his right to remain in the State has expired;(2) The applicant potentially carries findings of a lack of credibility with him from theasylum process thereby creating a negative impression from the outset;(3) The applicant cannot bring a claim unless he has been informed by the Minister thathe is a failed asylum seeker. The decision to refuse a declaration of refugee statusimplies that the Minister has already given some consideration to the case and hasmade a negative determination in relation to the applicant’s case. This creates animpression of partiality on the part of the Minister whose officials will also considerthe subsidiary protection application;(4) An application for subsidiary protection is considered during the pre-deportationprocess, when the Minister has already formed an intention to consider making adeportation order;(5) The competence, knowledge and training of the civil servant assessing eligibility forthe subsidiary protection, a complex legal issue, is not regulated; and(6) In contrast with asylum applications, subsidiary protection applications are notconsidered by a person who is independent of the Minister in the performance of hisfunctions.”At this point, it is necessary to note that, although Clark J. granted leave on thesegrounds and the case proceeded to hearing upon them, she also refused to grant leave oncertain other grounds advanced by the applicants. The refusal of leave was thenappealed to the then Supreme Court (Supreme Court Record Nos. 505 and 506/2012).Those appeals were pending at the date of establishment of the Court of Appeal, andwere initially transferred to the Court of Appeal pursuant to Article 64 of the Constitution.When appeals in the cases of V.J. and M.L. and J.C.M. were brought to this court, theArticle 64 direction was cancelled, and these appeals returned to the Supreme Court. Itwill be necessary to deal with them in due course. For present purposes, they can beidentified as “the Article 64 appeals”, that is, the appeals against the refusal by the HighCourt of leave to seek judicial review in the M.L. and J.C.M. cases on certain identifiedpoints.15 The V.J., M.L. and J.C.M. cases together raised a number of related issues in respect ofthe procedure for subsidiary protection applications. They were accordingly directed to beheard together, and were listed for hearing before McDermott J. It might have beenanticipated, therefore, that the resolution of this case (and any appeal) would havedetermined the major issues concerning the subsidiary protection regime. However, thecourse of these proceedings was significantly affected, and deflected, by a third stream oflitigation, which followed a complex and unpredictable course.The proceedings in the M.M. casePage 6 ⇓16 In M.M. v. Minister for Justice, Equality and Law Reform [2011] IEHC 547, (Unreported,High Court, Hogan J., 18 May 2011), the applicant was a Rwandan refugee of Tutsiethnicity who sought asylum in Ireland on the basis that, if returned to his home state, hewas at risk of being prosecuted before a military court for openly criticising the manner inwhich investigations into the Rwandan genocide in 1994 were being carried out. Onceagain, this application for refugee status was refused for lack of credibility. The applicantsought judicial review of the Minister’s decision to refuse to grant him subsidiaryprotection on the basis that the manner in which his application was dealt withcontravened Article 4(1) of Directive 2004/83/EC (“the Qualification Directive”). Article4(1) provided:-“Member States may consider it the duty of the applicant to submit as soon aspossible all elements needed to substantiate the application for internationalprotection. In cooperation with the applicant it is the duty of the Member State toassess the relevant elements of the application.”17 The applicant argued that the reference to cooperation with the applicant and the duty ofthe Member State meant that the authorities were under a duty to communicate with theapplicant during the course of the assessment of his application. In particular, it wasargued that in the event of a proposed adverse decision, that duty meant that theauthorities were obliged to supply a draft decision in advance to such applicant for his orher comments.18 Hogan J. reluctantly came to the conclusion that the position in European Union law wasnot clear, and therefore referred the following question to the CJEU in accordance withArticle 267 TFEU:-“In a case where an applicant seeks subsidiary protection status following a refusalto grant refugee status and it is proposed that such an application should berefused, does the requirement to cooperate with an applicant imposed on a MemberState in Article 4(1) of Council Directive 2004/83/EC require the administrativeauthorities of the Member State in question to supply such applicant with theresults of such an assessment before a decision is finally made so as to enable himor her to address those aspects of the proposed decision which suggest a negativeresult?”The court granted an interlocutory injunction restraining the deportation of the applicantpending the outcome of the reference to the CJEU.19 In a judgment delivered on 22 November 2012, the CJEU answered the question referredto by Hogan J. in the negative (see M.M. v. Minister for Justice, Equality and Law Reform(Case C-277/11) EU:C:2012:744 ). However, the terms of the decision of the CJEU gaverise to considerable additional debate. At para. 95 of its judgment, the CJEU decided:-“In the light of all the foregoing considerations, the answer to the question referredis that:-Page 7 ⇓– the requirement that the Member State concerned cooperate with an applicant forasylum, as stated in the second sentence of Article 4(1) of Directive 2004/83, cannotbe interpreted as meaning that, where a foreign national requests subsidiaryprotection status after he has been refused refugee status and the competent nationalauthority is minded to reject that second application as well, the authority is on thatbasis obliged – before adopting its decision – to inform the applicant that it proposesto reject his application and notify him of the arguments on which it intends to baseits rejection, so as to enable him to make known his views in that regard;– however, in the case of a system such as that established by the national legislationat issue in the main proceedings, a feature of which is that there are two separateprocedures, one after the other, for examining applications for refugee status andapplications for subsidiary protection respectively, it is for the national court to ensureobservance, in each of those procedures, of the applicant’s fundamental rights and,more particularly, of the right to be heard in the sense that the applicant must beable to make known his views before the adoption of any decision that does not grantthe protection requested. In such a system, the fact that the applicant has alreadybeen duly heard when his application for refugee status was examined does not meanthat that procedural requirement may be dispensed with in the procedure relating tothe application for subsidiary protection.”20 In retrospect, it might be said that the second paragraph of this decision was intended asa helpful clarification that in the bifurcated system, the second decision cannot be aformality, and there must be a real opportunity for the applicant to make known his orher views. The reference, however, to the “right to be heard” created an ambiguity whichgave rise to further contention, confusion and delay.21 When the case in M.M. returned to the Irish High Court, it was clear that the applicantcould not succeed on the ground raised and which had been referred by Hogan J.: seeM.M. v. Minister for Justice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370.However, there was considerable debate as to the impact of the second paragraph of thedecision of the CJEU. Ultimately, Hogan J. came to the conclusion that in the light of thejudgment of the CJEU, it was necessary to quash the decision of the Minister, because thedecision implied that the Minister had to make a separate and independent adjudication ofthe applicant’s claims with the possibility of an oral hearing and determination. Thecourt’s decision can be paraphrased as follows:-(1) The Minister was not required to provide the applicant with a draft decision onsubsidiary protection for comment prior to its adoption.(2) An oral hearing would not routinely be required in an application for subsidiaryprotection, although there may be circumstances in which an oral hearing would benecessary (for example, where an adverse credibility finding was to be made whichwas separate and distinct from such a finding made during the asylum process).Page 8 ⇓(3) In a bifurcated asylum and subsidiary protection system, the Minister could notdecide the subsidiary protection issue by relying on the reasoning of the asylumdecision, where such reliance precluded the applicant from re-opening certainissues.(4) The Minister’s decision to refuse subsidiary protection in this case relied completelyon the adverse credibility findings made in the asylum application, and where theMinister made no separate and independent adjudication on the applicant’s claims,the applicant had not been afforded a fair hearing of his subsidiary protection claim.(5) In order for a subsidiary protection hearing to be effective, it would require aprocedure whereby (i) the applicant was invited to comment on any adversecredibility findings in the asylum application, (ii) the applicant was given a freshopportunity to revisit all matters bearing on the claim for subsidiary protection, and(iii) the applicant was afforded a complete, fresh assessment of his credibility.22 At this point, it is necessary to observe that these cases were ongoing at the time that thereference in M.M. was underway, and were adjourned pending the outcome of thatreference. Furthermore, when the matter was recommenced before McDermott J. in theHigh Court, although the CJEU had delivered its judgment on the second reference whichwill be described shortly, the decision of Hogan J. represented the up-to-date position inIrish law, and had a significant influence on the outcome of this case in the High Court.Before, however, dealing with the decision in this case, and the impact of the M.M.reference upon it, it is necessary to fast-forward the narrative in relation to M.M. andcomplete the account of that tortuous case.The M.M. appeal23 The decision of Hogan J. in respect of the additional qualifying paragraph of the decisionof the CJEU on the first reference could be seen as an orthodox application of national lawprinciples, once it was determined, as it appeared to be, that the subsidiary applicationprocess should be treated as a procedure entirely separate from the asylum procedurewhich had preceded it, with a right to be heard. In Irish law, there is a strong tradition offair procedures requiring oral hearings and, if necessary, representation and cross-examination before certain decisions are made. However, the question of the extent ofthe right to be heard in a subsidiary protection application subsequent to a refusal of anasylum application is one of European Union law. Accordingly, the decision of Hogan J.was appealed to the Supreme Court. The Supreme Court in turn considered that it wasnot clear what was contemplated by the right to be heard in the specific circumstancesidentified in the CJEU decision, and accordingly referred the following question to theCJEU for a preliminary ruling:-“Does the “right to be heard” in European Union law require that an applicant forsubsidiary protection, made pursuant to Council Directive 2004/83/EC, be accordedan oral hearing of that application, including the right to call or cross-examinewitnesses, when the application is made in circumstances where the Member Stateconcerned operates two separate procedures, one after the other, for examiningPage 9 ⇓applications for refugee status and applications for subsidiary protection,respectively?”24 In a judgment dated 9 February 2017 (see M.M. v. Minister for Justice and Equality (CaseC-560/14) [2017] 3 CMLR 2), the CJEU gave the following answer to the questionreferred by the Supreme Court:-“56 In the light of all the foregoing considerations, the answer to the question referredis that the right to be heard, as applicable in the context of Directive 2004/83, doesnot require, as a rule, that, where national legislation, such as that at issue in themain proceedings, provides for two separate procedures, one after the other, forexamining applications for refugee status and applications for subsidiary protectionrespectively, the applicant for subsidiary protection is to have the right to aninterview relating to his application and the right to call or cross-examine witnesseswhen that interview takes place.57 An interview must nonetheless be arranged where specific circumstances, relatingto the elements available to the competent authority or to the personal or generalcircumstances in which the application for subsidiary protection has been made,render it necessary in order to examine that application with full knowledge of thefacts, a matter which is for the referring court to establish.”25 The import of this decision was significant. As these cases illustrate, nearly all subsidiaryprotection applications are made on the basis of, and by repeating, the matters set outand advanced in the asylum application. It was rare for applicants to seek to make adifferent or more elaborate case. It was normal for the subsidiary protection decision tobe made on the written materials, without an interview, and still less a cross-examination.The import of the first decision of the CJEU in M.M., as interpreted by the Irish HighCourt, suggested that standard process was presumptively invalid. By contrast, theoutcome of the second reference suggested that such a process was presumptively valid,absent specific circumstances relating to the elements available to the competentauthority, or the personal or general circumstances in which the application was made.In due course, the Supreme Court allowed the Minister’s appeal, and set aside the orderof certiorari granted by the High Court: see M.M. v Minister for Justice and Equality[2018] IESC 10, [2018] 1 ILRM 361. The court held that in the bifurcated systemwhich existed in Ireland at the time of the decision on M.M.’s application for subsidiaryprotection, it was permissible to make that decision on the basis of a written procedure,so long as the procedures adopted were sufficiently flexible to allow the applicant to makehis case. That requirement had been adhered to in M.M.’s case. Exceptionally, it may benecessary to permit an oral interview, but such an exceptional situation did not arise inM.M.’s case: the application for subsidiary protection identified only those matters whichhad already been relied on in the claim for asylum. The decision of the CJEU made it clearthat it was permissible to have regard to the information obtained in the asylum process,and to the assessment of the decision-maker in that process. There was no basis forcontending for an oral hearing, still less for an adversarial hearing.Page 10 ⇓26 It is necessary now to return to the High Court decision in this case, keeping in mind that,at the time, the court had available to it the decision of Hogan J. applying the firstreference in M.M., and the decision of the CJEU in the second M.M. reference.The hearing before McDermott J.27 In the immediate aftermath of the decision of the High Court in M.M. v. Minister forJustice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370, the parties to thisappeal sought to amend their application to add the following ground:-“The failure of the respondent to provide an oral hearing to the applicant forsubsidiary protection in circumstances where such a hearing is available to anapplicant for asylum is in breach of the fundamental principles of EU law and ultravires Directive 2004/83/EU.”28 In the event, McDermott J. delivered a comprehensive judgment in which he dismissedthe applicants’ cases in respect of the enmeshment ground on which leave had beengranted by Cooke J. in V.J., and dismissed five of the six sub-categories of the fairprocedures grounds upon which leave had been granted by Clarke J. in the M.L. andJ.C.M. cases. However, in relation to the ground concerning the entitlement to an oralhearing which had been added in the course of the proceedings, McDermott J. granted anorder for certiorari in all three cases. In doing so, he concluded that the judgments of theCJEU in the first and second M.M. references meant that:-(i) It was necessary that applicants for subsidiary protection be given an opportunityto address the adverse credibility findings in their subsidiary protection decisionswhich were quoted directly from the Refugee Applications Tribunal’s decision, and afresh opportunity to revisit the matters bearing on their claims for subsidiaryprotection, having regard to the requirement that there be a separate andindependent adjudication on each claim.(ii) It was not necessary that an oral hearing must be conducted in all cases permittingthe calling of witnesses or cross-examination of witnesses by applicants or theirlegal representatives. However, it may be that circumstances will arise in whichthe Minister should consider conducting such a hearing.(iii) Nonetheless, applicants should be invited to comment upon adverse findings madeby the Refugee Appeals Tribunal. If such findings were to be relied upon to theextent evident in the subsidiary protection decisions in V.J., M.L. and J.C.M.,consideration should be given to whether this gave rise to “specific circumstances”that would render an interview or hearing with the applicants necessary in order toensure that their rights to be heard were effectively observed.(iv) The Minister should at least consider whether an interview and in some cases anoral hearing ought to be afforded to an applicant when the materials include anadverse finding on credibility by the Refugee Appeals Tribunal which is central toPage 11 ⇓the decision to be made on the subsidiary protection application and contested bythe applicant.29 In that regard, McDermott J. granted certiorari on the additional ground, and also onground two on which leave had been granted by Clark J. in J.C.M. and M.L., that is, thatthe potential carrying of a finding of lack of credibility from the asylum process created anegative impression from the outset. It is apparent, however, from the reasoning in theHigh Court judgment, that this aspect was found to follow from the conclusions of theHigh Court in respect of the added ground, being itself one derived from the decisions inM.M.30 The Minister lodged appeals to the Court of Appeal in respect of the decision ofMcDermott J. In addition, the Minister contested the decision to permit amendment ofthe statement of grounds to include the additional ground, and further argued that, in anyevent, the applicants were not entitled to succeed on the additional ground as formulated.Thereafter, this court delivered its decision in M.M. v. Minister for Justice and Equality[2018] IESC 10, [2018] 1 ILRM 361. That decision clearly had a significant impact onthe appeals in this case. Accordingly, the Minister sought permission to appeal directly tothis court by way of leapfrog appeal in order to clarify and resolve any outstanding issues.For their part, the applicants, recognising that the decision of the Supreme Court in M.M.undoubtedly strengthened the Minister’s appeal, indicated that they wished to cross-appeal and advance additional grounds on which the decision of McDermott J. should besustained, namely the grounds which McDermott J. had dismissed. These were theenmeshment ground upon which leave had been granted by Cook J. in V.J. and thegrounds upon which leave was granted by Clark J. in M.L. and J.C.M. By determinationsof this court dated 15 May 2018 (see [2018] IESCDET 68, [2018] IESCDET 69, and[2018] IESCDET 70) this court granted leave to the Minister to appeal directly to thiscourt in order to resolve all outstanding issues in respect of the subsidiary protectionregime which had been applicable at least up until the introduction of S.I. No. 426/2013 -European Union (Subsidiary Protection) Regulations 2013, and ultimately theInternational Protection Act 2015. This was on the basis that the applicants would beentitled to argue the additional bases upon which they contended that the decision ofMcDermott J. could be upheld. The court also directed that the Article 64 direction becancelled so that the appeals from the refusal of leave by Clark J. should also be listed,and that the cases should be case managed together.Developments in case management31 It is clear that these appeals raised issues of considerable complexity, as much from aprocedural as a substantive point of view. However, the parties adopted a realistic andsensible position at case management that simplified the case at least to some extent.First, the applicant in V.J. accepted that his case was indistinguishable from M.M. and thatin the light of the judgment of the court, the Minister’s appeal against that portion of thejudgment of McDermott J. must be allowed. This meant that the only question still live inV.J. was whether the applicant was entitled to succeed on the enmeshment point. Inrelation to the oral hearing point in M.L. and J.C.M., there remained a question as toPage 12 ⇓whether those cases could be distinguished on its facts so that they would fall into one ofthe specific categories where an interview or oral hearing was required.32 In relation to the points raised in M.L. and J.C.M. on which leave had been granted byClarke J., but which had failed before McDermott J., the applicants were also prepared torefine those points somewhat. Thus, they did not seek to pursue points 5 and 6 (theexperience and training of the civil servants involved, and the independence of thedeciding body). Nevertheless, they maintained that McDermott J. had been correct tofind for the applicant on ground 2 (this was consistent with their position on the oralhearing point), and they further maintained that they ought to have succeeded ongrounds 1, 3, and 4 also. Accordingly, the effect of this is that in addition to the M.M.point, the points which remained for determination in the M.L. and J.C.M. cases werebased on the contention that the procedures applied by the Minister with regard tosubsidiary protection were in breach of natural and constitutional justice, and were ultravires and in breach of Directive 2004/83/EC and in breach of general principles ofEuropean Union law in that:-(i) The applicant is told of his right to apply for subsidiary protection after being toldthat his right to remain in the State has expired;(ii) The applicant potentially carries findings of a lack of credibility with him from theasylum process, thereby creating a negative impression from the outset;(iii) The applicant cannot bring a claim unless he has been informed by the Minister thathe is a failed asylum-seeker. The decision to refuse a declaration of refugee statusimplies that the Minister has already given some consideration to the case and hasmade a negative determination in relation to the applicant’s case. This creates animpression of partiality on the part of the Minister whose officials will also considerthe subsidiary protection application;(iv) An application for subsidiary protection is considered during the pre-deportationprocess, when the Minister has already formed an intention to consider making adeportation order.33 While expressed in different ways, these contentions can be seen as elaborations on, ordevelopments closely related to, the enmeshment point at issue in V.J.The Article 64 Appeals34 In form, these appeals are appeals against the refusal of an application for leave to seekjudicial review. Since at the relevant time applications for subsidiary protection did notfall under the procedure specified in s. 5 of the Illegal Immigrants (Trafficking) Act 2000,such an application was made ex parte and did not involve any elevated threshold such asa requirement that substantial grounds be established. The normal judicial review testestablished in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 applied: it would besufficient to establish arguable grounds to be granted leave to seek judicial review.Page 13 ⇓35 It was plain that these matters should be dealt with at the same time as the appeals tothis court in respect of the decision of McDermott J. in the High Court. However, theseappeals added a further layer of procedural complexity to the case. It was conceivable, ifthe appeals were dealt with as they stood, that if they succeeded and leave was grantedon some or more of the grounds, then the case would have to return to the High Courtand proceed as a normal judicial review, with perhaps the inevitability of an appeal to theCourt of Appeal and the possibility, indeed, of appeal to this court. It should be recalledthat these cases dated back to decisions made in late 2011 and 2012. On the other hand,if the applicants succeeded on some of the grounds on which they sought to uphold thedecision of McDermott J., then a determination of these points would be fruitless, but theywould remain as potential grounds of challenge which might have to be dealt with in aseparate litigation, where perhaps the other grounds were not available.36 The parties were prepared to agree that if the Supreme Court considered it was possibleto do so, the court could hear argument from both parties on the substantive merits, andcould make a final order in the case, either of certiorari if the argument succeeded, or anorder dismissing the claim if it was determined that the points advanced were withoutmerit.37 The position taken by the parties in this respect was sensible and realistic. As alreadyobserved, the actual decisions were made almost ten years ago in a process which was,moreover, intended to operate speedily and to bring certainty to the position of asylumseekers. In addition to the strong public, and, it might be said, private interest in thefinality of litigation, there was also the fact that it is desirable that these points should beresolved by the same court which heard and determined the other points raised in thesecases. In retrospect, it seems clear that the parties should not have permitted the HighCourt hearing before McDermott J. to proceed without a resolution of the question ofwhether or not leave should have been granted on these points. An application forexpedition to either the Supreme Court or the Court of Appeal should have been made toensure that any determination made by the High Court would be comprehensive. Itseems likely that these points were thought at the time to be of little significance incomparison to the more extensive issues on which leave was granted, but in the event,the failure to have them finally determined and either rejected or permitted to be includedin the challenge then ongoing has created an additional level of procedural complexityand the possibility that these proceedings, already of some antiquity, would continue wellinto their second decade.38 The consent and cooperation of the parties is certainly a welcome feature which is veryhelpful, but it is equally necessary to consider whether it is possible, as a matter of law,to take the course that common sense so clearly suggests. This court (and the Court ofAppeal) exercised appellate jurisdiction from a decision of the High Court. It is a normalcomponent of that jurisdiction that appeals are limited to issues determined, or at leastargued, in the High Court. Otherwise, one or other party is deprived of the opportunity ofa hearing in the High Court on the issue, and of appellate review. For that reason, anappellate court is slow to review issues which, if argued, were not decided in the HighPage 14 ⇓Court, and is slow to permit an argument to be advanced on appeal which was not madein the court below.39 However, the jurisdiction of an appellate court in this regard is to be exercised with someflexibility: see Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley [2013] IESC 16,[2013] 1 I.R. 227. The fundamental obligation of an appellate court is to permit theparties to appeal against the decision of the lower court, and, if possible, to resolve thedispute between the parties. Perpetual litigation is not a desirable state, and particularlytoday when litigation is costly and when there is significant pressure on the resources ofthe courts, courts should, if possible, adopt a course which brings proceedings to a fairconclusion as soon as possible. The fundamental jurisdiction of an appellate court is tohear an appeal from the decision of the court below, which is the outcome of thoseproceedings. All of these issues were part of the within proceedings, and thereforeshould, if possible, be resolved. Although an application for leave to seek judicial reviewis an ex parte application, there is no difficulty in permitting a respondent to be put onnotice and to address argument to the court: this course is regularly taken in the HighCourt. The only distinction, therefore, is the standard to be applied. In this case, in myview, it was permissible to hear argument as to the substantive issue on the basis that ifthe court concluded there was no substance to the point, it would uphold the refusal togrant leave to seek judicial review. If, on the other hand, the court concluded that therewas substance to the point, then it would be permissible, having regard to the positiontaken by the Minister, to make an order on consent quashing the determination. Eitherway, the proceedings would end with the decision of this court. Accordingly, in my view,it is appropriate to hear and determine these issues on their merits.40 The four grounds of appeal relied on in this regard are that it is suggested that the trialjudge:-(1) Erred in holding that the remedy of judicial review was sufficient to vindicate theapplicant’s fundamental European Union law right to apply for subsidiary protectionand/or have a review of such decision and/or was sufficient to vindicate theapplicant’s rights guaranteed by Article 47 CFREU;(2) Erred in holding that the aggregate of the remedies available to the applicant weresufficient to vindicate his European Union law rights, including his rights underArticle 47 CFREU;(3) Failed to apply the principles in Gaydarov v. Direktor na Glavna direktsia‘Ohranitelna politsia’ (Case C-430/10) EU:C:2011:749 to the effect that an effectiveremedy must permit review of the legality of the decision as regards matters ofboth fact and law in light of European Union law.(4) Erred in law in holding that the applicant’s right pursuant to the principles ofequivalence and effectiveness were not breached in the circumstances.Page 15 ⇓41 It should be noted that in written submissions to this court, the applicants indicated theywere not relying on any principle of equivalence, and accordingly the only issue on thislatter ground was the question of a breach of the principle of effectiveness. These fourpoints are closely related, and in the light of the applicants’ submissions can bedesignated as the “absence of an appeal mechanism point”.42 Lastly, in the Article 64 appeal in J.C.M., the applicant appeals on the additional groundthat, in the leave application, Clark J. erred in refusing to permit the applicants to arguethe ground that judicial review did not provide an effective remedy because the courtcannot consider additional materials which were not before the decision-maker at thetime the decision was made, and erred in refusing to permit the applicant to introducenew by way of affidavit.43 The outcome of these developments is that the court must consider on this appeal thefollowing grounds:-(1) Whether the facts of M.L. and J.C.M. are distinguishable from M.M. such as torequire an oral hearing or interview in his case;(2) The enmeshment point upon which leave was granted by Cooke J. in V.J.;(3) The enmeshment point as separately formulated by Clark J. in M.L. and J.C.M.;(4) The absence of an appeal mechanism point upon which leave was refused by ClarkJ.;(5) The fresh evidence point in J.C.M.Whether the cases of M.L. and J.C.M are distinguishable from M.M. so as to requirean oral hearing44 It is submitted in both cases that while the applicants had both repeated in theirsubsidiary protection applications the accounts which had been submitted (and foundlacking in credibility) in the asylum process, there were additional factors which meantthat their cases were both distinguishable from M.M. and were the type of exceptionalcase contemplated in that case which required an oral hearing. The argument in J.C.M.was that in addition to repeating the claim which had been submitted (and found wantingin credibility) in the asylum process, the applicant had also raised concerns in hissubsidiary protection application about his treatment if returned to the DRC as a failedasylum-seeker. He relied on report in the Guardian newspaper on 27 May 2009. TheMinister considered this together with further country of origin information and rejectedthe applicant’s claims. It is now argued that, since this was an issue not raised orconsidered in the asylum process, it was the type of case which meant that an oralhearing was necessary before his subsidiary protection claim was rejected.45 I cannot accept this submission. The decision in M.M. makes it clear that what is requiredis that an applicant must have an opportunity of making his or her case. Whether aninterview or oral hearing is required depends on the nature of the case made, not whetherPage 16 ⇓the particular point was raised in the asylum process. The type of contention made herewas one which by definition was something about which the applicants could have little ifany personal knowledge, nor was that suggested in their applications. It was an issueparticularly suited to determination by reference to the materials relating to country oforigin information, since the case made was that the applicants would suffer on return asfailed asylum-seekers. That depended on a status they shared with many others, ratherthan any individual characteristic. That feature of the case did not, therefore, require aninterview, still less an oral hearing. The applicant in J.C.M. also makes a related point inrelation to later evidence in relation to returned asylum seekers which was not admittedin the application for judicial review, and which it is necessary to address separately whenthe Article 64 appeals are considered.The enmeshment point46 It is contended that the procedure under the 2006 Regulations was unfair because theapplicants were only entitled to apply for subsidiary protection after the application forrefugee status had been determined negatively. In this regard, it is worth rememberingthat refugee status and the subsidiary protection of an applicant, while very similar, aredistinct concepts. Refugee status, speaking generally, arises from individual persecutionby State actors in consequence of the ethnic origin, religious beliefs, political alliance ororientation of people or of groups within a society. Clearly, that may involve violence orother grave threats, but these arise or are a real threat because of what people eitherare, identify themselves as, or are perceived to be. Subsidiary protection, on the otherhand, arises where someone comes to the State and has a well-founded fear of violencein their country of origin. That need not be because of their real or perceived status intheir country of origin but because of the absence of resort to such aspects of civic societyas police, courts and army which operate as a general threat to the well-being of anapplicant. While civil war may be an example of such a state, the difference is in thegeneralised threat to life. Hence, a person applying for refugee status will no doubt focuson violence, but there the test also involves the ostensible reason they say they aretargeted. In making a subsidiary protection application, that targeting need not form partof the contention since generalised violence is the focus. Although therefore they areclosely related concepts they are distinct. Since these proceedings were commenced andthis point formulated, this court has delivered its decision in Nawaz v. Minister for Justice[2012] IESC 58, [2013] 1 IR 142, following the reference to the CJEU in H.N. v.Minister for Justice, Equality and Law Reform (C-604/12) [2014] 1 WLR 3371, whichcovers much of this ground. It was observed there that since refugee status providesgreater protection for the individual than subsidiary protection, and since an applicant willnot necessarily be in the best position to identify the form of international protection towhich he or she may be entitled, it was in principle permissible for competent authoritiesto determine the status most appropriate to the applicants’ situation. It followed,therefore, that an application for subsidiary protection should not in principle beconsidered before the competent authority has reached the conclusion that the personseeking international protection does not qualify for a refugee status. At para. 36 of itsjudgment, the CJEU stated:-Page 17 ⇓“36 It follows that Directive 2004/83 does not preclude national legislation whichprovides that the requirements for granting refugee status must be consideredbefore those relating to subsidiary protection.”47 In H.N., the CJEU also went on to consider other aspects of the process, and, inparticular, considered there was a requirement that the decision be made within areasonable time. Furthermore, the right to good administration encompassed objectiveimpartiality. That, however, was not breached where a national authority informed theapplicant prior to considering the application for subsidiary protection that the authoritywas considering making a deportation order. At para. 54 of its judgment, the courtobserved:-“54 It is in fact common ground that the reason for that disclosure on the part of thecompetent authorities is that it has been found that the third country national doesnot qualify for refugee status. That finding does not, therefore, mean that thecompetent authorities have already adopted a position on whether that thirdcountry national satisfies the requirements for being granted subsidiary protection.55 Accordingly, the procedural rule at issue in the main proceedings is not at odds withthe requirement of impartiality pertaining to the right to good administration.”48 It is the case that a considerable time period could and did elapse between the decisionon refugee status and any subsequent decision on subsidiary protection. In these cases,a period of up to two years was involved. However, the applicants cannot establish anyprejudice in that regard. Even if a court concluded that the delay was inordinate and inbreach of the applicants’ rights under national law and/or European Union law, it wouldnot necessarily follow that the appropriate remedy would be an order quashing thedecision actually made. At paras. 65 and 66 of his judgment, the learned High Courtjudge rejected the applicants’ claim in this regard, and in my view he was correct to doso.49 It is perhaps worth observing at this point that the bifurcated regime applicable in Irelandduring the relevant time was cumbersome, ineffective, and an easy target for legalchallenges. It was therefore the subject of considerable delays. All these factors madethe system inefficient and unsatisfactory, both from the point of view of theadministration, and of any applicant involved in the process. For these reasons, it wasthe subject of criticism in a number of decisions. Inefficiency however is not necessarilythe same as fundamental unfairness. In principle, a two-step process with separatedecision-making procedures and decision-makers, with the possibility of commenting onand addressing the finding made in the asylum process in the context of the subsidiaryprotection decision, and the possibility of legal challenges at each stage, is not, inprinciple, self-evidently unfair to an applicant. Valid criticisms of inefficiency and delaycan be levelled at the system, but at the same time, a perverse feature of the system wasthat, however frustrating the delays were for applicants, they often had the effect ofimproving any claim for humanitarian leave to remain. The fact that the procedure couldPage 18 ⇓be rightly criticised on grounds of inefficiency, does not automatically mean that it lackedall legality.50 Next, it is contended that the procedure under the 2006 Regulations was unfair,disproportionate and in breach of Article 47 CFREU because an application for subsidiaryprotection would only be considered once the applicants’ temporary entitlement to remainin the State had expired.51 In this regard, the applicants made two arguments. First, it was said that the assessmentof the subsidiary protection claim against the background of the proposal to deport unders. 3(3) of the Immigration Act 1999 was unfair, disproportionate and in breach of theapplicants’ rights to an effective remedy, largely because of the different time limits forchallenging a deportation decision and a decision in relation to a refusal of subsidiaryprotection. Second, they say that the applicants’ position on receipt of the three optionsletter was analogous to that of the successful applicants in Luximon v. Minister for Justice[2018] IESC 24, [2018] 2 IR 542.52 Prior to the commencement of s. 34 of the Employment Permits (Amendment) Act 2014on 3 October 2014, decisions to refuse subsidiary protection were not included in the listof decisions to which the statutory provisions in s. 5 of the Illegal Immigrants(Trafficking) Act 2000 (“the 2000 Act”) applied, which provided at the time for a 14-daytime limit to challenge, among other things, deportation orders, which time limit could beextended for good reason. (Following the amendment of the section by s. 34 of theEmployment Permits (Amendment) Act 2014, the relevant time limit is now 28 days). Atthe time of the decision in this case, subsidiary protection decisions were not included inany of the statutory regimes for limiting the period for judicial review. It followed, that atthe time when M.L. and J.C.M. received their decisions on subsidiary protection, the thenrequirement of O. 84, r. 21(1) was that an application for leave should be made promptlyand in any event within three months from the date when the ground of application arose,or six months when the relief was sought was certiorari, unless the court considered therewas good reason for extending the period. At the time V.J. received a decision on hissubsidiary protection application, the time limit had been altered by the Rules of theSuperior Courts and was now three months from the date when the grounds ofapplication first arose again with the possibility of an extension under O.84, r. 21(3).53 The applicants say that once their applications for subsidiary protection were refused,they were liable to be deported at any time. It follows, therefore, that if a challenge wasnot brought within 14 days of the deportation order, an applicant could be deportedbefore the end of the ordinary three or six month time limit for challenging the subsidiaryprotection decision has expired. This, they say, would deprive them of a right to aneffective remedy under Article 47 CFREU.54 First, it should be noted, and indeed it is fundamental to this case, that in the presentcase the manner in which the procedures were operated did not prevent an of theapplicants from seeking judicial review of their subsidiary protection decisions: they wereeach in a position to challenge both the deportation order and the subsidiary protectionPage 19 ⇓decisions together, and did in fact do so. This is not surprising. The process fordetermination of applications for international protection is quite protracted and it is wellknown to those practising in the field that, since it is the application for refugee statuswhich permits entry into the State, deportation is a potential consequence of remaining inthe State after an adverse determination. The possibility of applications for subsidiaryprotection and humanitarian leave to remain is also well known. This issue was discussedin the context in In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999[2000 2 IR 360, in which Keane C.J., giving the judgment of the court, addressed thecontention that the initial 14 day period for challenge was too short:-“As a preliminary observation, it should be recalled that a person who is the subjectof a deportation order will have become aware in the course of the extendedprocessing of his or her application that he or she is on real risk of becoming thesubject of a deportation order. In addition, the person concerned will in the vastmajority of cases have received almost three weeks’ notice of the intention to makethe deportation order. Once the deportation order has been notified to the personconcerned there are fourteen days from the date of notification (or deemednotification as the case may be) within which to apply for judicial review and this inturn is subject to an extension at the discretion of the court. There is nothing in thesection which would prohibit the person concerned from applying for an extensionof the fourteen day period before that actual fourteen day period had elapsed.”55 These observations appear applicable in the present context, in which the applicantsargue, in effect, that due to the absence of an explicit provision preventing deportationbefore a minimum time has elapsed after the refusal of subsidiary protection, and theshort time limit for challenging a deportation order, it is possible that a person could bedeported before the end of the ordinary three or six-month time limit for challenging hisor her subsidiary protection decision.56 The applicants argue that on receipt of the three options letter and during the processingof a subsidiary protection application, they did not have an entitlement to reside in theState, and thus were unlawfully present in the State. It is unsatisfactory that thereappears to have been no express requirement that applicants for subsidiary protectionshould be granted temporary leave to remain in the State pending the Minister’s decisionon their application. That situation was remedied in Regulation 4 of S.I. No. 426/2013 -European Union (Subsidiary Protection) Regulations 2013, and subsequently in ss. 16 and17 of the International Protection Act 2015. However, Regulation 4(5) of the 2006Regulations provided that where the Minister determined that an applicant was not aperson eligible for subsidiary protection, “the Minister shall proceed to consider, havingregard to the matters referred to in section 3(6) of the 1999 Act, whether a deportationorder should be made in respect of the applicant”. Further, s. 3(5) of the 1999 Actprovided that the provisions of s. 3(3)(b) shall not apply to a person who is outside theState, which would tend to imply that persons making representations under s. 3(3) asper the invitation in the three options letter will do so while still in the State.Page 20 ⇓57 On that basis, it appears there was no question of the applicants being deported orotherwise required to leave the State before their applications for subsidiary protection orhumanitarian leave were determined. Even if it might technically be said that theapplicants were, due to a gap in the legislation, “unlawfully present” in the State withinthe meaning of s.5(2) of the 2004 during that time, they do not show that they sufferedany adverse consequence by virtue of that position.58 Similar considerations applied to the fact that there was a 15-day time limit applicable forthe making of an application for subsidiary protection following receipt of notification thattheir claim for refugee status had been refused. In Danqua v. Minister for Justice andEquality (Case C‑429/15) EU:C:2016:789, the CJEU held that the 15-day time limit wascontrary to the principle of effectiveness, since it did not ensure in practice that allapplicants were afforded a genuine opportunity to submit an application for subsidiaryprotection. However, unlike the applicant in Danqua, the applicants in this case cannotshow that they were adversely affected by this rule: each of their applications appears tohave been made in time, and was accepted for consideration by the Minister.59 The applicants also rely on the recent decision of this court in Luximon v. Minister forJustice [2018] IESC 24, [2018] 2 IR 542. In that case, the applicants had entered theState and resided lawfully for a considerable period on the basis of Stamp 2 studentpermissions until a change in the scheme promulgated in 2011 required them to apply tothe Minister under s. 4(7) of the Immigration Act 2004 to vary their permission to remainto a Stamp 4 permission. The decision refusing to vary the applicants’ permission in thismanner required them to leave the State by a specified date, unless they obtained analternative permission by that time. Critically, the Minister took the position that, inconsidering the application to vary the permission under s. 4(7) of the 2004 Act, he wasnot required to have any regard to the applicants’ rights under Article 8 ECHR, andargued that he was only obliged to consider those rights in the context of a decision tomake a deportation order.60 This court held that there was no power under s. 4(7) of the 2004 Act to direct theapplicants to leave the State. Furthermore, in order to be able to make representationsunder s. 3(3)(b) of the 1999 Act (including representations in relation to Article 8 ECHR)the applicants would be obliged to remain unlawfully in the State pending the deportationprocess, and were constrained therefore to act in an unlawful manner. This could not belawful, or in accordance with public policy. Even if the power the Minister purported toexercise had existed, the Minister was required to act in accordance with the applicants’rights under Article 8 ECHR at the s. 4(7) decision stage, and this requirement was notmet where compliance with the Minister’s direction to leave the State would have meantthat their Article 8 ECHR rights as members of family units would be violated in anyevent.61 Luximon is, however, markedly different from the present cases. There was no questionof a consideration of Article 8 ECHR rights in the context of the refugee or subsidiaryprotection applications in these cases, and consequently no question of the MinisterPage 21 ⇓seeking to defer consideration of such matters until a decision on deportation. Unlike theapplicants in Luximon, the three-options letter did not direct the applicants to leave theState. With regard to the third option offered of applying for subsidiary protection and/ormaking representations to the Minister under s. 3(3)(b) of the 1999 Act, there is nosuggestion in the letter that the applicants were required to leave to leave the Statebefore making an application for subsidiary protection or representations under s. 3(3)(b)of the 1999 Act. In Luximon, the Minister sought to make a decision which on its ownterms – a direction to leave the State – necessarily affected in a real way the applicants’Article 8 rights without having regard to those rights. No such circumstance arose inthese cases.62 As already set out, McDermott J. quashed the subsidiary protection decisions challengedby the applicants in J.C.M. and M.L. on the basis of both the oral hearing point alreadydiscussed, and the second ground upon which Clark J. had granted leave, that is, that anapplicant for subsidiary protection potentially carried a finding of lack of credibility withhim or her from the asylum process, thereby creating a negative impression from thestart. It is accordingly necessary to address that point.63 The reasoning of the High Court judge is set out at paras. 92 to 94 of his judgment and itis clear that this conclusion was closely linked to, and consequential upon, the finding inrespect of the oral hearing issue. Thus, it was concluded that the respondent had:-“failed to afford the applicants a fair opportunity to address issues of credibility inthe subsidiary protection application. The decision-makers in each of these caseshave failed to rely on any material outside the adverse credibility findings made bythe Tribunal concerning the assertions of fact made by them in respect of theirclaims. I am satisfied on the basis of the judgment in M.M. v. Minister for Justice(Hogan J.) that it was essential that each of the applicants be given an opportunityto address the adverse credibility findings quoted directly in the subsidiaryprotection decisions from the Refugee Appeals Tribunal decisions and a freshopportunity to revisit the matters bearing on their claims for subsidiary protectionhaving regard to the requirement that there be a separate and independentadjudication on each of these claims”.64 It is apparent, therefore, that the conclusion of the learned trial judge in this respect wasdependent on his reliance on the judgment in the High Court in M.M. v. Minister forJustice, Equality and Law Reform [2013] IEHC 9, [2013] 1 IR 370 and the conclusionthat there had to be a fully separate and independent adjudication. This conclusion cannotstand in the light of the decision of this court in M.M. v. Minister for Justice and Equality[2018] IESC 10, [2018] 1 ILRM 361. It does not appear to me that the point has meritwhen viewed on its own. It is perhaps slightly contentious to say that the credibilityfinding “travels with” the applicant. The asylum application and determination are part ofthe materials before the Minister in relation to which the applicant can make submissions.Indeed, that was the point which the CJEU emphasised in the additional paragraph inM.M. v. Minister for Justice, Equality and Law Reform (Case C-277/11) EU:C:2012:744Page 22 ⇓there had to be an opportunity for the applicant to be heard in that regard and in relationto his or her application more generally. If the Minister was entitled to have regard to theasylum findings – and that is clear from the decision in M.M. – then there is nothingunlawful in the credibility findings being before the Minister. The applicants also argue inthis regard that they were not told that this was the case, and had they been told, theywould have addressed those findings. This is a point has a sense of being influenced bythe manner in which the legal position has been clarified by the repeated decisions of theCJEU and this court. It suggests perhaps that the outcome of MM was not anticipated, andseeks to turn that to advantage by suggesting the Minister was under an obligation toinform the applicants of their rights to make submissions on matters including credibility.It is apparent that the applicants originally contended for a much different procedure.However, the Minister was not obliged to tell the applicants what the legal position was,or what matters the applicant could or could not address, so long as the Minister did notpreclude submissions on any relevant matter. The applicants here were not under anyconstraint as to the matters they sought to advance. Accordingly, I would reject thisargument.The absence of an appeal mechanism point in M.L. and J.C.M.65 This point arises in the Article 64 appeals in M.L. and J.C.M. The applicants argue thatjudicial review was the only means of challenging the refusal of their applications forsubsidiary protection, and is not an effective remedy for the purposes of Article 47CFREU.66 It is important to recall that this point was raised and dismissed in these cases in 2012,when the application for leave to seek judicial review was made to Clark J. It is avariation of a point that has been advanced for some time in the context of the right to aneffective remedy under the ECHR, and, latterly, as a requirement of European Union law,most clearly pursuant to Article 47 CFREU. The consistent position of the jurisprudencehas been that judicial review in Irish law is a sufficiently flexible remedy to constitute aneffective remedy, whether viewed through the prism of the CFREU, the ECHR, or indeedthe Irish Constitution. It was on this basis that leave was refused.67 By the time this case came on for hearing in this court, the argument faced the evenmore substantial hurdle that the issue appeared to have been addressed comprehensivelyand definitively by the judgment of this court in A.A.A. v. Minister for Justice [2017] IESC 80(Unreported, Supreme Court, 21 December 2017), referring with approval to the priordecision of the Court of Appeal in N.M. v. Minister for Justice [2016] IECA 217, [2018] 2I.R. 591.68 The applicants, however, sought to refer to decision of the CJEU in Secretary of State forthe Home Department v. Banger (Case C-89/17) [2019] 1 CMLR 6. The fourthquestion referred by the Upper Tribunal (Immigration and Asylum Chamber) (UnitedKingdom) in that case was whether a rule of national law which precluded an appeal to acourt or tribunal against a decision of the executive refusing to issue a residence card to aperson claiming to be an extended family member was compatible with Article 3(2) ofDirective 2004/38 (often referred to as the Citizenship Directive).Page 23 ⇓69 The facts in Secretary of State for the Home Department v. Banger (Case C-89/17)[2019] 1 CMLR 6 were both complex and unusual. It appears that initially, and forsome time thereafter, it had been assumed that the relevant provisions in England andWales introduced in 2006 permitted an appeal to the tribunal system from a decisionrefusing a residence card to a person claiming to be an extended family member.However, in a controversial decision, the Upper Tribunal concluded on an interpretation ofthe Nationality Immigration and Asylum Act 2002, and implementing EEA Regulations2006, that contrary to the submissions of both the appellant and the Secretary of State,that an appeal did not exist from a refusal by the Secretary of State to grant a residencycard to a person claiming to be an extended family member: Sala (EFMs: Right ofAppeal) [2016] UKUT 411 (IAC), [2017] Imm AR 141. In the event, that decision wasdisapproved of by a judgment of the Court of Appeal of England and Wales in Khan v.Secretary of State for the Home Department [2017] EWCA Civ 1755, [2018] 1 W.L.R.1256, which was itself specifically approved by the Supreme Court of the United Kingdomin S.M. (Algeria) v. Entry Clearance Officer, UK Visa Section [2018] UKSC 9, [2018] 3 AllE.R. 177. Furthermore, new regulations came into force in 2019 providing for an appeal.However, there remained a group of cases not captured by the new regulations, and stillgoverned by the decision in Sala. The fourth issue referred by the Upper Tribunal to theCJEU was therefore, whether a rule of national law which precluded an appeal to a courtor tribunal against the decision of the executive refusing to issue a residence card to aperson claiming to be an extended family member was compatible with Directive2004/38. As the court observed, that question had to be understood in the context of theprevious decision of the Upper Tribunal in Sala. At para. 42 of the judgment, the courtobserved that the question therefore raised “not the possible absence of review by a courtfor those persons, but whether Directive 2004/38 requires a redress procedure wherebymatters of both fact and law may be reviewed by a court”. The court observed at para.48 that the provisions of Directive 2004/38 had to be interpreted in a manner thatcomplied with the requirements flowing from Article 47 CFREU, so that persons must haveavailable to them an effective judicial remedy against the decision in question, permittinga review of the legality of that decision as regards matters of both fact and law in thelight of European Union law, citing in that respect the judgment in Gaydarov v. Direktorna Glavna direktsia ‘Ohranitelna politsia’ (Case C-430/10) EU:C:2011:749. The courtexpressed its conclusion in the following passage:-“49 Consequently, it must be found that the procedural safeguards provided for inArticle 31(1) of Directive 2004/38 are applicable to the persons envisaged in point(b) of the first subparagraph of Article 3(2) of that directive.50 As regards the content of those procedural safeguards, according to the Court’scase-law, a person envisaged in Article 3(2) of that directive is entitled to a reviewby a court of whether the national legislation and its application have remainedwithin the limits of the discretion set by that directive (judgment of 5 September2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 25).Page 24 ⇓51 As regards its review of the discretion enjoyed by the competent nationalauthorities, the national court must ascertain in particular whether the contesteddecision is based on a sufficiently solid factual basis. That review must also relateto compliance with procedural safeguards, which is of fundamental importanceenabling the court to ascertain whether the factual and legal elements on which theexercise of the power of assessment depends were present (see, by analogy,judgment of 4 April 2017, Fahimian, C‑544/15, EU:C:2017:255, paragraphs 45 and46). Those safeguards include, in accordance with Article 3(2) of Directive 2004/38,the obligation for those authorities to undertake an extensive examination of theapplicant’s personal circumstances and to justify any denial of entry or residence.52 In the light of the foregoing considerations, the answer to the fourth question isthat Article 3(2) of Directive 2004/38 must be interpreted as meaning that thethird-country nationals envisaged in that provision must have available to them aredress procedure in order to challenge a decision to refuse a residenceauthorisation taken against them, following which the national court must be ableto ascertain whether the refusal decision is based on a sufficiently solid factualbasis and whether the procedural safeguards were complied with. Those safeguardsinclude the obligation for the competent national authorities to undertake anextensive examination of the applicant’s personal circumstances and to justify anydenial of entry or residence.”70 It is apparent from the judgment of the court that it does not purport to extend, alter orreverse the existing case law, but rather emphasises it. Furthermore, insomuch as anyprinciple of the interpretation of Article 47 CFREU is to be deduced from the judgment, itis plain that what is required is a review of the decision which is capable of ascertainingwhether the refusal decision was “based on a sufficiently solid factual basis”. Whilerequiring, therefore, a searching review, the judgment plainly stops short of requiring anappeal which would involve a rehearing and a substitution of the views of the appellatebody for that of the decision-maker. Given, therefore, the terms of the judgment inSecretary of State for the Home Department v. Banger (Case C-89/17) [2019] 1 CMLR 6,and the fact that it is not presented as a departure from the prior case law of thecourt, all of which has been considered in the recent Irish decisions, the judgment doesnot, in my view, raise any sufficient basis for questioning the law that the decisions of theIrish courts only recently laid down: as noted above, in A.A.A. v. Minister for Justice[2017] IESC 80 (Unreported, Supreme Court, 21 December 2017), and N.M. v. Ministerfor Justice [2016] IECA 217, [2018] 2 I.R. 591, it was held that judicial review as isavailable in Ireland is an effective remedy for the purposes of Article 47 CFREU. It isperhaps noteworthy that in F.M. v. The Minister for Justice and Equality [2018] IEHC 274,(Unreported, High Court, Humphreys J., 17 April 2018), the High Court came to a similarconclusion in relation to an argument advanced on the basis of the opinion of AdvocateGeneral Bobek in Banger.Developments since the hearing in this casePage 25 ⇓71 The applicants in correspondence have sought to draw the court’s attention to furtherdevelopments in European Union law, and of the development of the Banger proceedingsin England and Wales. In the first place, it was suggested that the opinion of AdvocateGeneral Bobek given on 30 April 2019 in Torubarov v. Bevándorlási és MenekültügyiHivatal (Case C-556/17) EU:C:2019:339 was relevant. That case was very unusual. In2015, the Hungarian legislature had changed the competence of courts when reviewingadministrative asylum decisions from having the possibility to directly alter a decision to apower to merely to annul and remit. In Torubarov, an application had been made forinternational protection in 2013. It was rejected by the administrative authority twice.Both these decisions were annulled for different reasons by the referring court and theapplication was then reviewed and rejected for a third time, apparently in disregard of theguidance that had been issued in the referring court. The referring court therefore askedwhether, as a matter of European Union law, it could derive the power to alter theadministrative decision from European Union law, and more specifically from Directive2013/32/EU on common procedures for granting and withdrawing international protection(known as the Procedures Directive) read in the light of Article 47 CFREU.72 Advocate General Bobek suggested that Directive 2013/32/EU read in conjunction withArticle 47 CFREU meant that a model of judicial review endowed with a mere cassationalpower where judicial guidance is effectively being disregarded by administrative bodiesfails to meet the requirements of effective judicial review set out in the directive, asinterpreted in the light of Article 47(1) CFREU.73 Despite the superficial points of comparison between Torubarov and this case, in that itinvolves judicial review in the context of an application for international protection, it isapparent that the legal issue is quite distinct. Advocate General Bobek did not find that aform of review endowed with cassational power, still less judicial review as available inIreland, was not, in itself, an effective remedy under Article 47 CFREU which is what theapplicants would require to establish if they were to succeed. Instead, it was only wherethe cassational power was being disregarded by the administrative power to which it wasbeing directed, that it could be said that the power was not an effective remedy. Ifanything, therefore, the import of the opinion is adverse to the applicants: it is at leastimplied that judicial review which is complied with by the administrative bodies to which itis directed, is an effective remedy for the purposes of Article 47 CFREU. Furthermore, thedecision is plainly distinguishable. Not only is there no suggestion that there is anydisregard by the Minister of the decisions of the court on judicial review and asylummatters, but the power of judicial review in this jurisdiction extends to orders ofmandamus, if necessary directing an administrative body to decide a case in accordancewith law. I note that the CJEU has recently delivered its decision in Torubarov v.Bevándorlási és Menekültügyi Hivatal (Case C-556/17) EU:C:2019:626, which indeed theapplicants’ solicitors have also submitted to the court. For completeness I should observethat it does not appear to me that it contains anything that advances the applicant’scontentions.Page 26 ⇓74 More recently, the applicants have returned to the Banger case. It was stated in furthercorrespondence that at the hearing reliance had been placed by the applicants in M.L. andJ.C.M. in respect of the effective remedy argument on the recent judgment of the CJEU inSecretary of State for the Home Department v. Banger (Case C-89/17) [2019] 1 CMLR 6and it had been pointed out that the judgment had not been interpreted by the UKreferring court but was due for hearing. The letter further stated: “You will recall theissue related to whether judicial review was an effective remedy”. The letter stated thatthe barristers’ chambers involved in representing the claimants case in the Banger casehad announced that the Secretary of State for the Home Department had withdrawn theimpugned regulations and was due to introduce regulations providing for a right ofappeal, that accordingly there would be no need for a substantive case to be heard, andthat the claimant had been invited to withdraw the claim for judicial review. It was saidthat the approach of the United Kingdom authorities showed their understanding of theBanger decision was that Article 47 CFREU required a full merits appeal. It should beobserved at this point that for the reasons set out above, the issue in Banger did notrelate precisely to “whether judicial review was an effective remedy”. Rather, it relatedto the somewhat unusual circumstances which had arisen in England and Wales followingon the decision in Sala.75 Recently, the solicitors for the applicants wrote to this court again, stating that thestatement made that the proceedings in Secretary of State for the Home Department v.Banger (Case C-89/17) [2019] 1 C.M.L.R. 153 were to be withdrawn was inaccurate, andthat in fact the matter had proceeded to a hearing and had resulted in a recent decisionof the Upper Tribunal (Immigration and Asylum Chamber). They contended that theconclusion of the Upper Tribunal was that the European Union law required a redressprocess more akin to a statutory appeal rather than judicial review. The decision of theUpper Tribunal (Lane J. and Judge Rimington) was, it appears, delivered on 10 April 2019,and is to be found at [2019] UKUT 194 (IAC). At para. 40 of the judgment, it is stated:-“40 There are two points which indicate from the judgment that a full merits appeal andthus a statutory appeal is required. First, the judgment refers to a redressprocedure which must be able to decide whether the refusal decision was foundedon a sufficiently solid factual basis. The nature of that redress procedure is morealigned with the process in a statutory appeal than judicial review. Secondly, theSecretary of State has effectively recognised this aspect of the judgment byproducing legislation in express recognition of that ruling, which offers a statutoryappeal.”76 It is contended on behalf of the applicants that the fact that the judgment was interpretedin this way by the courts of one Member State gives rise at least to a situation where itcannot be said that the law is clear, and therefore a reference to the CJEU is required.77 I cannot accept this contention. It is apparent from the judgment of the Upper Tribunal,and indeed the judgments which precede it, that the background to that case in terms ofthe statutory provisions it involved was particularly obscure, and the different turns takenPage 27 ⇓in the case law prior to the decision meant that the area was particularly complex anddistinct. Furthermore, the Upper Tribunal commented adversely upon the approach of theSecretary of State and the apparent dilatoriness in making available the residency permitto the applicant, which had been promised in the public announcement made by theSecretary of State of the proposed introduction of new regulations. In thosecircumstances, the Upper Tribunal proceeded to determine an appeal which mightotherwise have been regarded as moot.78 It is apparent that the issue in that case arose in very particular circumstances whichwere unique to England and Wales, and far removed from the fundamental issue raisedhere – whether judicial review in Ireland is an effective remedy for the purposes of Article47 CFREU. It is noteworthy that there was only a single basis for the Upper Tribunal’sinterpretation of the judgment of the CJEU in Secretary of State for the Home Departmentv. Banger (Case C-89/17) [2019] 1 CMLR 6 as requiring a statutory appeal, namelythat it was considered that the reference to establishing that the decision was founded onsufficiently solid factual basis was considered to be “more aligned with the process ofstatutory appeal than judicial review”. For reasons already addressed, I respectfullydoubt that this conclusion can in fact be drawn from the decision of the CJEU, certainly asfar as the Irish legal system is concerned, which is, of course, the only issue arising inthis case.79 The question of whether judicial review in Ireland can be said to be an effective remedyfor the purposes of the ECHR or the CFREU is one which has been widely considered inIrish courts, and on which at the moment the law is clear, as illustrated most recently bythe decision in A.A.A. v. Minister for Justice [2017] IESC 80, (Unreported, Supreme Court,21 December 2017). As has been noted, the process of judicial review as applied inIreland generally, and perhaps specifically in the field of international protection, is both aflexible and powerful remedy. Decisions may be reviewed for legality, procedural error,irrationality, proportionality, and compliance with and protection of rights under theConstitution and the ECHR, rights under European Union law, and the rights protected bythe Charter. It is a necessary feature of any system of judicial review that the court isnot empowered to rehear issues and substitute its own findings of fact for those of thedeciding body. Furthermore, that limitation is intrinsic to any concept of judicial review,and has the corresponding feature that in some cases review may be more extensive,since a decision may be quashed for an error which was capable of being corrected on amerits appeal. In any event, the law in this regard in Ireland must be regarded assettled, and I am not persuaded that the relatively fragmentary allusions and referencesraised by the applicants are sufficient to raise the sort of doubt that would require areference to the CJEU. That is particularly so in the context of an area of law, and aseries of decisions, which have already been at least indirectly the subject of tworeferences in the M.M. litigation. The function of national courts is to decide cases in thelight of the guidance provided by the CJEU. The procedure for a reference to the CJEU isnot an end in itself. For these reasons, I conclude that the applicants’ contention thatthey were entitled to a form of appeal on the merits from a decision on an application forsubsidiary protection, itself necessarily following a hearing and appeal on the question ofPage 28 ⇓refugee status, is incorrect. Nor can I accept the applicants’ contention that the decisionof the Upper Tribunal raises a sufficient doubt about the matter as to require this court tomake a reference to the CJEU under Article 267 TFEU. For reasons already addressed, theposition in Irish law is clear and has been recently and authoritatively clarified. Therelevant portion of the decision in Banger does not appear to me to be of sufficient weightto cast doubt on something very well-established and of very wide application.The refusal to admit fresh evidence in J.C.M.80 Finally, it is necessary to address the argument advanced that Clark J. wrongly refusedto admit fresh evidence in the application for judicial review in J.C.M. This was evidenceabout a further report about the position of failed asylum seekers in the DRC. It wasadmitted that it post-dated the Minister’s decision by many years but was available at thetime of the judicial review application. I do not think this is in truth a separate ground ofcomplaint. It is rather an illustration of the point the applicants sought to make as to thelimitation of the judicial review process: that is, that the absence of a full appeal on thefacts meant that they could not refer to such material. However, this is merely aconsequence of the procedure for judicial review. Clark J. would only have been wrong torefuse to admit the evidence if, contrary to the decision of this court, a full appeal on themerits was required by European Union law. The decision does not mean that theapplicants could not deploy the information if it was really telling. It might, for example,be the basis of an application to the Minister to reconsider the decision. In othercircumstances, it might have been relevant in the judicial review proceedings, or otherjudicial review proceedings depending on the point formulated, but when it was sought tobe introduced as part of a de novo appeal to invite the court to decide that the Ministerwas wrong on the merits, or indeed that subsidiary protection should now be granted tothe applicants , it was plainly outside the judicial review process and was correctlyexcluded. It follows, for the reasons set out above, that the appeal against the refusal ofClark J. to grant leave to seek judicial review on this point must be dismissed.81 Finally, it will be apparent that this judgment has had to address a number of mattersraised in correspondence after the oral hearing of the appeal had concluded. I have dealtwith these issues in the judgment because they were capable of being disposed of and itwas undesirable to further delay the resolution of this case by further sequential hearings.However, the process of communicating with this or any other court after a hearing hasconcluded must be approached with some caution. Where a court invites the parties toclarify a matter, there will of course be little difficulty. Similarly, a party may wish tocorrect an incorrect statement of fact or law. However, more difficult issues arise when itis sought to address matters of legal argument.82 An appeal to this court is normally confined to identified points of law which have beenthe subject of written decisions in the High Court, and often the Court of Appeal, andwhich in turn will have been addressed in detailed written submissions and oral argument.The application for leave to appeal, the written submissions, and the prior judgments, areall publicly available, and the oral argument takes place in open court. The processculminating in that hearing is not intended to be merely the opening act in a long-runningPage 29 ⇓drama: as has been observed, like any trial, the hearing is the opening and closing nightof the show. Every litigant experiences what is sometimes called l’esprit d’escalier: thethought that there is something more that could have been said, or said better ordifferently, or some materials to which reference might usefully have been made. In asystem where new judgments are delivered daily, and where courts in other common lawcountries often generate judgments on similar issues, it would indeed be surprising if thenecessary lapse of time between argument and judgment did not produce at least somematerial, whether a decision in this jurisdiction or elsewhere, or commentary or otherauthority, which could be said in some way to touch upon the matters addressed in thehearing. These features are, however, not sufficient in themselves to justifycommunication with a court which is not carried out in public or publicly available. Thefundamental justification for any post-hearing communication with a court on anycontentious issue is if the new matter is considered sufficiently significant as to affect theoutcome of the case, and which would require to be the subject of a further hearing andargument, such as, for example, the delivery of a decision considered binding on thecourt. If the parties are agreed on the significance of a matter, it may be put before thecourt by agreement. If there is agreement about its significance but debate about theparticular impact, and it is considered that full argument is required, then this should becommunicated to the court with a request for a short hearing and directions as to thedelivery of written submissions and material. If the parties disagree, then the partycontending that a further hearing is required should bring such an application on notice tothe other party inviting the court to direct a hearing and seeking directions.83 It must be obvious, however, that this is a matter upon which circumspection andjudgment is required to be exercised, particularly by parties with the benefit of legaladvice. It is undesirable that further issues and arguments as to substance should beraised in correspondence, particularly in a case such as this which has seen aconsiderable proliferation of issues during its extensive lifetime. In circumstances wherethe judgment of the CJEU in Secretary of State for the Home Department v. Banger (CaseC-89/17) [2019] 1 CMLR 6 had been referred to in argument, it was appropriate todraw the court’s attention to the decision of the Upper Tribunal on the interpretation ofthat judgment and I am do not criticise the parties’ representatives in this case in anyway. It is important, however, that parties should not consider that the hearing of anappeal is only one part of the process, and that there can be a further runningcorrespondence with the court outside of the public hearing. In the circumstances of thiscase, it is not necessary to dwell on these matters further, and I touch on them now onlyto provide guidance for the future.84 For the reasons set out in this judgment, I would allow the Minister’s appeal in each case,dismiss the applicants’ cross-appeals, and set aside the orders of the High Court quashingthe decisions of the Minister.

Obuseh -v- MJELR & Anor

[2010] IEHC 93 (14 January 2010)

Judgment Title: Obuseh -v- MJELR & Anor

Neutral Citation: [2010] IEHC 93

High Court Record Number: 2008 756 JR

Date of Delivery: 14/01/2010

Court: High Court

Composition of Court:

Judgment by: Clark J.

Status of Judgment: Approved

 

Neutral Citation Number: [2010] IEHC 93

THE HIGH COURT
JUDICIAL REVIEW

2008 756 JR

 

BETWEEN

FRED ALIEMEKA OBUSEH
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GARDA NATIONAL IMMIGRATION BUREAU

RESPONDENTS

JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 14th day of January, 2010
1. The applicant claims to be a national of Nigeria from the Niger Delta region whose activities with the Delta Youth Movement included the murder of at least one Nigerian soldier in 2004. The Refugee Applications Commissioner found that his asylum application contained major credibility issues and the Refugee Appeals Tribunal found that he was not a credible witness. In 2006 he was refused a declaration of refugee status and he has since made unsuccessful applications for leave to remain in Ireland on humanitarian grounds and for subsidiary protection. The Minister for Justice, Equality and Law Reform (“the Minister”) made a deportation order against him in April, 2008.

2. By order dated the 9th May, 2009, Cooke J. granted the applicant leave to seek judicial review of the Minister’s refusal to grant him subsidiary protection, dated the 16th January, 2008, on two grounds which may be summarised as:

a. The Minister erred in law and / or acted ultra vires and / or in breach of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) (“the Protection Regulations”) by imposing the requirement that the applicant conclusively prove the facts relating to his application for subsidiary protection; and
b. The Minister erred in law and in the interpretation of the Protection Regulations by failing to investigate and consider adequately or at all whether there would exist a “serious and individual threat” to the applicant’s life or person within the meaning of Regulation 2 of the Protection Regulations.

3. The substantive hearing took place on the 11th December, 2009. Mr Anthony Lowry B.L. appeared for the applicant and Mr Anthony Moore B.L. for the respondents.
Background
4. The background claimed by the applicant is that he was born in 1965 in Delta State, Nigeria. He arrived in Ireland in January, 2006 and applied for asylum. He said he was a member of the Ijaw tribe and a Christian. He grew up in Agbor, Delta State but after he finished secondary school in 1984 he lived in Warri where he owned a food store. He married his wife in 1993 and their son was born in 1995.

5. Following exposure to an incident of police heavy handedness when he was detained for two months and mistreated sustaining a broken tooth and loss of hearing, he joined the Delta Youth Movement, an armed militant group operating in Delta State. They were engaged in stealing and selling oil from the pipelines. The military was deployed to the area to prevent tampering with the oil pipelines and the youths engaged in guerrilla warfare with the army. At his s. 11 interview the applicant revealed for the first time that he himself had killed some soldiers but does not remember how many. In August or September, 2004, he went out at night with other youths, armed with a machete. He crept up on some soldiers who were asleep while guarding a pipeline; he disarmed one and killed him with a gun he had taken from the ground. He did this because he was angry at the government. Other soldiers were also killed on that night.

6. As a result of the killings a state of emergency was declared and on the 2nd September, 2004 the federal government declared the applicant a “wanted” man although the newspapers did not mention him by name. He left Warri with his mother, brother, sister and son and moved to another town. His wife remained behind in Warri but threats were made against her and their shop was destroyed. In December, 2004 the Youth Movement organised for her to travel to Wales and the following month she gave birth to their daughter there. Meanwhile the applicant went to Lagos where he lived with friends for one year and one month before coming to Ireland via Amsterdam in January, 2006, again with the help of the Delta Youth Movement. His son remained in Delta State with the applicant’s mother. The applicant was refused entry at Dublin airport because his passport contained a false visa. At the airport he gave a false date of birth and said his wife and child were with him, which he later retracted saying that the agent had told him to lie. He said that if returned to Nigeria he would be charged with murder and could face a firing squad. He then disclosed that his wife and daughter live in Wales.

7. The Refugee Applications Commissioner found that the applicant’s account contains some major credibility flaws which were outlined in the s. 13 report. It was found that he was fleeing from punishment for a crime as opposed to persecution and it was noted that he had relocated to Lagos for over a year without being harmed. The applicant appealed to the Refugee Appeals Tribunal (RAT) and at the oral appeal hearing he repeated the account of killing the disarmed soldier. He furnished a SPIRASI report which stated that he suffers from high blood pressure and had a broken tooth and decreased hearing in his right ear which the examining physician stated “could be as a result of the ill-treatment that he reports sustaining” while imprisoned in Nigeria. Like the Commissioner, the RAT found that if the applicant’s account was true, he was fleeing prosecution and not persecution, that a number of unanswered questions remained and that he did not present as a credible witness.

8. In May, 2006 the Minister issued a proposal to deport the applicant. The following month, the Refugee Legal Service (RLS) made an application for leave to remain on his behalf. The applicant furnished a personal statement restating the same basic facts that had grounded his asylum application. The Minister was informed that the applicant’s wife and daughter were now residing with him in Ireland. It was submitted that he would be at risk of torture, inhuman or degrading treatment and would face a life of insecurity and uncertainty if returned to Nigeria. Appended to that application were three country of origin information (COI) reports A U.S. Department of State Country Report – Nigeria (2005), an extract from the Human Rights Watch World Report (2006) and a Reuters news article from January, 2006 entitled “Villagers flee Nigerian Oil Delta, troops move in.” and references attesting to the applicant’s good character. Additional references and certificates were furnished in 2007. Meanwhile in October, 2006 the European Communities (Eligibility for Protection) Regulations (S.I. No. 518 of 2006) (“the Protection Regulations”) came into force and in January, 2007 the applicant was invited to apply for subsidiary protection. This application was not successful and his leave to remain application was then considered by an officer of the Repatriation Unit. This too failed and a deportation order was made in April, 2008. That decision is not challenged; instead the challenge is to the manner in which the Minister considered the applicant’s subsidiary protection application.
The Subsidiary Protection Application and Decision
9. The “serious harm” which the applicant asserts he faces if returned to Nigeria derives from his previous activities as a member of the Delta Youth Movement. In his application he claimed to be at risk within the meaning of Articles 15(b) and (c) of Council Directive 2004/83/EC of 29 April 2004 (“the Qualification Directive”) which define serious harm as:-

(b) Torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(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.

10. It was argued that serious harm pursuant to Article 15(b) was established as the applicant had previously been “beaten and detained by the authorities in Nigeria” and that he is at risk of further torture if returned which is borne out by COI which indicates high levels of violence and corruption in the Delta region. It was further submitted that he suffers from chest pain for which he is receiving medical treatment which would not be available to him in Nigeria.
11. The applicant submitted that he is not excluded from subsidiary protection within the meaning of s. 13(1) of the Protection Regulations / Article 17 of the Qualification Directive (i.e. the exclusion clauses). It was also submitted that state protection would not be available to him within the meaning of Article 7 of the Directive because it is the Nigerian State which poses a risk of harm to him by failing to sufficiently protect him from violence and by the lack of access to medical treatment. It was submitted that the provisions of Regulation 7(1) of the Protection Regulations, which effectively sets out the internal flight alternative, do not apply to the applicant. Finally it was submitted that his identity and nationality had not been in doubt and that his account had been at all times coherent and plausible.

12. When in October, 2007 his subsidiary protection application was considered by an Executive Officer of the Repatriation Unit, the Officer synopsised the applicant’s claim and referred to each of the COI reports furnished. He observed that while medical evidence confirmed a broken tooth and hearing damage in the applicant’s right ear, he had not proved that he was detained or that he was wanted because of killing a soldier and he found no credible connection between the applicant’s personal circumstances and COI relied upon. He went on to state that:

“Throughout the applicant’s claim for asylum at first stage, at appeal and now at subsidiary protection stage, the applicant has at no time given any evidence that he is wanted by the police. The applicant stated that he lived in Nigeria for one year and a month following the alleged killing without incident. This undermines the applicant’s claim.”
13. Of issue in these proceedings is that the Officer found:
“[…] on the basis of the applicant’s personal circumstances and on the testimony that he provided and all the documentation on file and the findings of both the ORAC and Appeals Tribunal that there is no conclusive evidence to indicate that the applicant in this case is prevented from seeking protection from the authorities in Nigeria.” (Emphasis added)
14. The Officer did not accept that the applicant had suffered serious harm in Nigeria. That question was assessed by reference to the medical evidence submitted by the applicant. The Officer concluded:-
“It is not accepted that a broken tooth and hearing impairment conclusively prove the applicant’s assertions. There are multiple possible causes of such conditions.” (Emphasis added)
15. It was correctly observed that the applicant’s claim was rejected by the Commissioner and the RAT, that the Commissioner found that his account contained major credibility issues and that the RAT found that he did not present as a credible witness. It was found that even if his claim had been found to be credible, the applicant could have been liable to exclusion under the provisions of Regulation 13(1) (a) of the Protection Regulations because he murdered a soldier in Nigeria. The Officer’s negative recommendation was affirmed by a Higher Executive Officer in November, 2007 and by the Assistant Principal of the Repatriation Unit in January, 2008.
16. As noted at para.2, there are two net issues in this case namely:-

a. The Minister applied the incorrect burden of proof; and
b. The Minister failed to investigate and consider whether there would exist a “serious and individual threat” to the applicant’s life or person.

(a) Burden of Proof
17. It is contended that no applicant is required to conclusively prove his assertions and that the Minister therefore applied an unduly onerous burden of proof by finding that, because the medical evidence did not “conclusively” prove his assertions, the applicant had failed to establish that he had suffered serious harm in the past. Regulation 2(1) of the Protection Regulations requires an applicant to show “substantial grounds” for believing that he would face a real risk of suffering serious harm. Goodwin-Gill and McAdam in The Refugee in International Law (3rd ed) state that the facts on which an application is based should be proven “on the balance of probabilities”.
18. Mr Lowry B.L., counsel for the applicant, argued this is relevant because Article 4(4) of the Qualification Directive suggests that if “serious harm” is found to have occurred in the past, there is a presumption that it will occur in the future unless good reasons are shown for believing the contrary. Article 4(4) provides:-

“The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.”
19. Mr Moore B.L., counsel for the respondents, argued that the Officer was at all times aware of the correct test as prescribed by the Protection Regulations as she had set out the definition of a person eligible for subsidiary protection as determined by Article 2(e) of the Qualification Directive and later referred to whether there was a “real risk of serious harm” to the applicant. He argued that in those circumstances the use of the description “conclusively” did not establish a material error.
The Court’s Assessment of (A)
20. The Court commences its assessment of this aspect of the applicant’s challenge by restating that the main objective of the Council Directive is to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and to ensure that a minimum level of protection is available for these persons in all Member States.

21. The Court accepts the respondents’ submission that the decision to refuse subsidiary protection to the applicant did not contain a material error as it is clear that the applicant did not fail to be granted subsidiary protection because he was required to conclusively prove serious harm nor is the Court satisfied that the Minister actually imposed such a requirement. The applicant has fastened on to a particularly infelicitous word used twice in a lengthy consideration. Circumstances akin to what happened here have been dealt with by the Courts on many occasions and the Courts have frequently heralded the danger in selecting an undoubted error of phrase to impugn an otherwise valid decision. The respondent relied on the decision of Tabi (G.T.) v. The Refugee Appeals Tribunal [2007] IEHC 287 where Peart J. held:-

“It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used […], unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. […] If a decision maker makes a significant and material error in how the evidence has been recorded, or other serious error of fact, then of course the process by which credibility has been assessed falls short of the required to meet a proper standard of constitutional justice. But such an error must go beyond a mere possible ambiguity arising from the words used. The error must be clear and it must go to the heart of the decision making process, and fundamentally undermine it.”
22. At the heart of the decision to refuse subsidiary protection in this case was the finding that the applicant’s narrative was not accepted. The same story was recounted throughout the asylum, leave to remain and subsidiary protection stages namely that he was arrested in early 2004 and detained and beaten for a two month period, following which he joined the Niger Delta Youth Movement and thereafter murdered an unarmed solider in cold blood and became a wanted man. The Refugee Applications Commissioner and the Refugee Appeals Tribunal both found that his story lacked credibility and also that if his account were true, then he was fleeing prosecution and not persecution. Even a brief perusal by this Court of the documents reveals that the applicant’s account was vague and inconsistent and ran contrary to volumes of COI on the conflict in the Niger Delta. He presented no evidence other than his own narrative in support of his story and he presented no elaboration or elucidation on that narrative in his subsidiary protection application. In the circumstances, the Minister was perfectly entitled to have regard to the previous credibility findings when making the assessment in this application. Article 4 of the Qualification Directive states:
“Where Member States apply the principle according to which it is the duty of the applicant to substantiate the application for international protection and where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation, when the following conditions are met:

(a) the applicant has made a genuine effort to substantiate his application;
(b) all relevant elements, at the applicant’s disposal, have been submitted, and a satisfactory explanation regarding any lack of other relevant elements has been given;

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case;

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so; and

(e) the general credibility of the applicant has been established.”(Emphasis added)

23. While the applicant is absolutely right that there is never any requirement on a protection applicant to conclusively prove his account, it seems to this Court that the applicant has seized on the examining officer’s unfortunate use of the words “conclusively prove” as representing the test which was imposed regarding the likelihood of the applicant facing serious harm if he were returned. Having read the consideration of the application for subsidiary protection as a whole and in the context of the narrative presented and the previous findings, it is clear that the Minister’s agent was merely stating what was already obvious. The applicant told a story which for many reasons itemised in the decisions of the Commissioner and the RAT was found not to be credible. The Court does not need to go into those reasons which were unchallenged by way of judicial review and were supported by well reasoned, cogent findings. Suffice to say many inconsistencies and knowledge deficits were identified.
24. When the officer was dealing with the objective medical findings of a broken tooth and hearing loss in one ear which could have been associated with mistreatment in detention, he stated that these findings did not prove that the injuries came from this source. The use of the word conclusively was unnecessary and added nothing to the previous assessment of this evidence by the RAT. The applicant never provided evidence of any medical finding that these injuries proved his assertion that he had been mistreated in detention; rather, the SPIRASI report simply stated that the injuries “could” be consistent with his story. It is noteworthy that the examining physician in this case did not use the language of the Istanbul Protocol which is commonly used by SPIRASI as a guide for the assessment of persons who allege torture and ill-treatment, when reporting findings to the judiciary and other investigative bodies.

25. The inappropriate use of the word “conclusively” did not affect the heart of the decision which was (1) that the applicant was found not credible and (2) if his story was true and he really had killed a disarmed soldier then he could be liable for exclusion from international protection under the provisions of Regulation 13(1) (a) of the Protection Regulations which provides:-

“A person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that he or she—

(a) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”.
26. As the words used did not either import a wrong test or form the basis of the decision to refuse subsidiary protection, this aspect of the challenge fails.
(b) Article 15(c)
27. The applicant’s next challenge to the legality of the refusal to grant subsidiary protection lay in the asserted failure to consider whether the well documented violence in Niger Delta amounts to a situation of internal armed conflict in which the applicant would be at risk of indiscriminate violence within the meaning of Article 15(c) of the Qualification Directive. Mr Lowry argued that the applicant’s situation should have been considered under Article 15(c), as elucidated in the judgments of the European Court of Justice in Elgafaji v. Staatssecretaris van Justitie (Case C-465/07, judgment of the 17th February, 2009) and the Court of Appeal in Q.D. (Iraq) v. Secretary of State for the Home Department [2009] EWCA Civ 620. While he accepted that on the applicant’s evidence he may have been a combatant at one point, Mr Lowry argued that he could be considered a civilian if returned to Nigeria. The Minister’s assessment of the subsidiary protection application should therefore have included an investigation as to whether the applicant would be at risk of serious harm from indiscriminate violence even if the applicant himself placed little emphasis on that issue in his claim for subsidiary protection.

28. Mr Lowry argued that the Minister is obliged to conduct a fresh assessment when considering an application for subsidiary protection and that while he may rely on previous negative findings made by the Commissioner and / or the Tribunal, he must also comply with his obligation to reach a fair decision which is not confined to assessing the submissions made by the applicant. The applicant’s role is merely to assist the Minister in reaching his conclusion. Reliance was placed on Neosas (Fr. N) & Others v. The Minister for Justice, Equality and Law Reform [2008] IEHC 177, where Charleton J. held at paragraph 56 that:-

“In my view, the Minister is under a duty to act carefully and honestly in considering an applicant’s entitlement to subsidiary protection. An applicant will, no doubt, make the best possible case that is available on the basis of country of origin information. That case may assist the Minister, it may be real in terms of what it puts forward, or it may be exaggerated. Any submission may be checked against what the Minister already has available to him and supplemented by any reliable additional reports. The receipt of submissions may assist in the process, but it does not relieve the Minister of his responsibility to make a fair decision.”
29. Mr Moore B.L. responded that where credibility is absent at the asylum stage and the same narrative is advanced at the subsidiary protection stage, there is no obligation to begin a credibility analysis anew. The applicant’s narrative was substantially rejected by the Commissioner and the RAT and the Minister was entitled to apply the credibility findings made by those authorities in accordance with the decisions of Charleton J. in Neosas (cited above) and Birmingham J. in Bamidele (G.O.B.) v. The Minister for Justice, Equality and Law Reform [2008] I.E.H.C. 229. The applicant did not elaborate or particularise his claim within the meaning of Article 15(c) and he furnished no evidence in that regard. The Minister is not required to prove the applicant’s case for him. A very high threshold was set by the ECJ in Elgafaji for the requirements of Article 15(c) to be fulfilled. This was affirmed in QD (Iraq) where the Court of Appeal found at paragraph 25 that an armed conflict will attract the protection of Article 15(c) only “where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety.” Mr Moore further argued that the applicant would not fall within Article 15(c) because he is not a civilian.
The Court’s Assessment of (B)
30. This is a case where the second legal argument advanced on behalf of the applicant is, at first glance, interesting but on further examination it becomes apparent that the argument is flawed. This is because the argument ignores that there is no escaping the fact that the applicant’s narrative of the events which brought him to Ireland was found not credible. The Court finds it difficult to envisage any circumstances where an asylum applicant is found not credible in his / her claim as to the existence of a well-founded fear of persecution will be granted subsidiary protection on the same facts. One has to ask oneself how, if a person’s assertion relating to a fear of persecution is not believed, it can logically be possible that he /she might be eligible for protection on the basis of the same story under the Qualification Directive and Protection Regulations. Subsidiary protection is exactly what it says it is – it provides complementary protection to those applicants who do not meet Convention requirements to establish persecution but who nevertheless require protection. A qualified applicant for such protection is a person defined by Article 2(e) of the Qualification Directive as a 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, 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”.
31. If therefore the applicant has been rejected on credibility grounds for refugee status and he wishes to obtain subsidiary protection, he faces the unenviable task of establishing substantial grounds for believing that he will face a risk of serious harm from the death penalty or execution or torture or inhuman or degrading treatment on his return to his country of origin within the meaning of Article 15(a) or (b) of the Qualification Directive. Where, as in the applicant’s case, he does not rely on Article 15(a) or (b) but seeks to rely on the terms of Article 15 (c), he has to show that he faces a serious and individual threat by reason of indiscriminate violence in situations of international or internal armed conflict, that state protection would not be available to him and that he / she could not reasonably be expected to stay in another part of the country of origin where there is no real risk of suffering serious harm. It is axiomatic that if a person who claims to face such danger cannot establish that he / she is actually from such a situation of international or internal armed conflict and further cannot show why he / she could not reasonably be expected to relocate, then he / she will not be eligible for such protection.
32. As whether a right to subsidiary protection exists depends on a fair assessment of the facts, such an assessment as a matter of law includes an examination of the factual matrix in which the applicant came to be a protection seeker. When Charleton J. was reviewing case law on subsidiary protection in Neosas (see para. 28 above), he held that the Minister’s obligation to fully and properly consider any case as to additional rights which have not previously been considered, is tempered by the qualification that:-

“Where, as a matter of substance, however, a contention as to the factual basis for such rights is the same as that which is already being processed under the Refugee Act, 1996, then the case law clearly establishes that the Minister is entitled to place some degree of weight on the failure of the applicant to succeed in persuading the Refugee Applications Commissioner and the Refugee Appeals Tribunal as to their entitlement to refugee status and as to their credibility.”
33. In Hila and Djolo v. The Minister for Justice, Equality and Law Reform [2007] IEHC 277, Feeney J. held with respect to the Qualification Directive:-
“The Directive does not impose any requirement to review earlier decisions either as regards subsidiary protection or refugee status. If it did it would have to have done so in express terms given the clear recognition of existing different practices within the Member State. There is no requirement for across the board reconsideration of earlier decisions as that could only arise if there was an unconditional and precise provision to that effect.”
34. Apart from the fact that the Minister is not obliged to reconsider the same facts previously rejected, the applicant in this case simply did not make the case that there is a threat to his life or person by reason of indiscriminate violence in the Delta region such that he is eligible for protection under Article 15 (c). He furnished no particulars, documentation, information or evidence in relation to such a threat. His claim has always been that he fears that he will be specifically and individually targeted by the Nigerian police and will be subjected to torture, inhuman or degrading treatment by reason of his activities in the past and COI was furnished to support this contention. His claim was therefore considered within the parameters of Article 15(b) and not Article 15(c). No submissions were made to the Minister or to the Court as to whether an “internal armed conflict” existed in Delta State, the meaning of a “civilian” in that context, the meaning of a “serious and individual threat” within the meaning of Article 15(c), or the question of whether the principles of international humanitarian law would apply.
35. The Court does not accept that the Minister has a free-standing obligation to investigate whether a person is eligible for protection within the meaning of Article 15(c) when that person has not identified the risk to his life or person because of armed conflict nor does it accept that the role of the applicant is merely to assist the Minister. The passage that the applicant opened from the decision of Charleton J. in Neosas (see paragraph 28 above) does not support the contention made by the applicant. The said passage must be read in context. Charleton J. held that “a clear obligation is cast on the Minister to fairly consider an application for subsidiary protection both in terms of the situation of an applicant and the true situation on their country of origin.” Charleton J. then went on to consider the contention made in the Neosas case that a fair assessment required an engagement between the applicant and the Minister on any up to date COI relied upon by him. This was firmly rejected and it was specifically in that context that those arguments that Charleton J. made the statement relied on by the applicant in this case. There is nothing in that assessment which supports the applicant’s contention in this case that the obligation on the part of applicants has been diluted and that the Minister is obliged to make a case for the applicant even if he does not do so himself.

36. The respective roles of the protection applicant and the protection decision-maker are found in Regulations 4 and 5 of the Protection Regulations. Regulation 4(3) imposes an obligation on the decision maker to consider the following matters:-

“(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied;
(b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or may be subject to persecution or serious harm;

(c) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm;

(d) whether the protection applicant’s activities since leaving his or her country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for protection as a refugee or a person eligible for subsidiary protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country;

(e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he or she could assert citizenship.”

37. While the Minister is expected and indeed mandated to have considered up to date information on the conditions on the ground in the applicant’s country of origin which in this case was Nigeria and the Delta region, this is far from imposing a free standing obligation to go beyond that information and to investigate whether the applicant faces any unclaimed and unidentified risk. Regulation 5(3) restates verbatim Article 4 of the Council Directive, which is reproduced at paragraph 22 above. The protection decision maker is obliged to be informed of conditions in an applicant’s home country and an applicant is obliged to make genuine efforts to substantiate his story and establish his credibility.
38. Another important aspect of the within case is that the applicant all but ignored the exclusion from international protection of any person where there are serious reasons for considering that he has committed a war crime, a crime against humanity or a serious crime, pursuant to Article 17 of the Qualification Directive. It would appear that the killing of a disarmed soldier in the circumstances described by the applicant could constitute such a crime. The situation here is that the applicant’s story of being part of the Delta Youth Movement was found not credible. It may well be that if he had been found credible, his assertion that he killed the soldier in cold blood would render him ineligible for protection. This was a matter that was specifically noted by the Minister’s officer.

39. While in light of the foregoing, the Court is not satisfied that the applicant is entitled to the reliefs sought, there remains the issue of the use of ill-chosen language on two occasions in the impugned decision. Those ill chosen words were not corrected by reviewing senior officers. The use of the words “conclusively prove” was the genesis of this application for judicial review and gave rise to the grant of leave to apply for judicial review. In the circumstances, the Court is satisfied that although the applicant fails in his application for an order of certiorari he should nevertheless be granted an order for a portion of his costs.