The much needed reformation of the Irish
Asylum system has once again been thrust into the spotlight with the recent
decision of M.M v Minister for Justice, Equality and Reform, Attorney General.
Under current legislation,
the European Communities (Eligibility for Protection) Regulations, when an
unsuccessful asylum applicant is informed that his or her application for
refugee status has been refused, s/he will be informed that the Minster
proposes to make a deportation order. S/he will have the opportunity to apply
to the Minister for Justice, Equality and Law Reform for permission to remain
in the State on the grounds that he or she is eligible for 'subsidiary
protection'. Subsidiary protection is available to a person who does not qualify as a refugee
but if returned to his or her country of origin, would face a real risk of
suffering serious harm as defined for the purpose of the Directive.
On 22nd
November the European Court of Justice held in the case of M.M v Minster for
Justice, Equality and Reform, Attorney General, that Ireland’s system of
subsidiary protection does not comply with the right to be heard, a fundamental
principle of European Union Law.
Applicants for subsidiary protection
make a paper application to the minister, who on the basis of this application
and asylum makes a decision. The government argued as the applicant has a right
to be heard in the application process, it is unnecessary to hear the applicant
again in the subsidiary protection procedure.
The Court of Justice firmly rejected
this argumentation. The Court noted as Ireland has established two separate
procedures for dealing with asylum and subsidiary protection, an applicant has
the right to be heard in the context of both procedures.
Ireland is in fact the only EU country
not to have a single asylum and
subsidiary protection procedure. In Ireland, an applicant must first apply for
asylum – a process which may take years, and receive a firm rejection of their
asylum before qualifying as eligible to apply for subsidiary protection.
The complicated and cumbersome nature of
the Irish Asylum application process was also recently highlighted in the
decision last month in the Supreme Court case Okunade v Minister for Justice
Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The
Supreme Court granted injunctions restraining the deportation of a Nigerian
woman and her five year old Irish-born son while they challenged their
deportation order and a ministerial decision refusing them subsidiary
protection. Overturning the decision of the High Court, the Supreme Court found
that the deportation order constituted a disproportionate interference in the
family life of the young boy who knew no other country than Ireland. The Asylum
process of this country was held to be the blame for the amount of time the
family had resided here.
Brophy Solicitiors
30.11.12