A NEW PROCEDURE REQUIRED FOR SUBSIDAIRY PROTECTION APPLICATIONS

A significant judgement was delivered today by Mr Justice Hogan in the case of MM v The Minister for Justice which will have far reaching effects on the current subsidiary protection procedure in Ireland.

Mr Justice Hogan held that the Minister for Justice  had failed to afford the applicant an effective hearing at subsidiary protection stage because the Minister had relied completely on the adverse credibility findings made by the Refugee Tribunal regarding the applicant’s claim of harm he may suffer in his country of origin, and because the Minister did not afford the applicant an independent and separate adjudication of these claims.

Mr Justice Hogan’s decision was reached in light of the recent comments of the Court of Justice,  made in response  to the High Court’s reference  to the Court of Justice on the same case.  The Court of Justice  had criticized the current system in Ireland where applicants  must apply for subsidiary protection separately and subsequently to the asylum application, in circumstances where they have no opportunity for a fresh hearing to address the adverse credibility  findings made against them at the asylum stage.  The Court of Justice ‘s reasoning was that if Ireland wished to have a separate application procedure for subsidiary protection, this separate procedure must be fully distinct from the asylum application procedure and the findings made therein. 

Mr Justice Hogan applied the Court of Justice’s reasoning to the Applicant in the MM case to find that the subsidiary protection decision was unlawful and must be quashed, because the Minister had relied entirely on the reasons advanced by the Refugee Appeal Tribunal to reject the credibility  of the applicant’s claim.  No separate or distinct investigation was carried out. The applicant was therefore not afforded an effective hearing at the subsidiary protection stage. 

The consequences of this decision are very significant. Most refusals of subsidiary protection applications are arrived at to a large extent by the deciding officer’s  reliance on adverse credibility findings by the Refugee Appeals Tribunal.   This procedure is now deemed legally flawed and in breach of EU law. The Minster is now clearly on notice that he is required to afford the applicant an opportunity to revisit such matters in the context of an “effective hearing”, which currently does not exist.  

Mr Justice Hogan has proceeded to envisage what  this “effective hearing” would involve  at a minimum level. He indicates that the applicant would  be invited to comment on any adverse credibly findings made by the Refugee Appeals Tribunal, the applicant would be given an opportunity to revisit all matters bearing on the subsidiary protection claim, and the Minister would carry out a completely fresh assessment of the applicants credibility . 

It may be the case that an oral hearing will be required, but will not necessarily be required in every case of subsidiary protection. 

This decision means that the Minister will have to put in place a new or significantly amended procedure for subsidiary protection  applications. Until this happens, each decision may also be deemed to be unlawful.  Mr Justice Hogan acknowledges the far reaching consequences of this decision for the practical administration of the subsidiary protection scheme, and suggests that it is a matter that the Oireachtas might urgently address.  

Brophy Solicitors

24.1.13

Revocation of Refugee Status

It has been reported in an article in today’s Irish Times , that Minister for Justice Alan Shatter, recently confirmed in a parliamentary question that 57 people had their refugee status revoked since he took office in March 2011. The Minister cited the main reason for the revocations being the provision of ‘false or misleading information’.  

Theses figures show a substantial increase in the numbers of revocations of refuge status in the recent years. 

Reference is made in the Irish Times article to a case of Brophy solicitors where a man from Darfur had been given refugee status but when he tried to have his family brought over to Ireland. The Minister wrote to him saying he proposed taking away his refugee status as he was found to have changed information on how he got to Ireland. The client provided an erroneous answer in his asylum interview solely with respect of the specific dates on which he witnessed certain attacks on his village and on his fellow villagers. He also failed to provide information in relation to a short period he spent in another EU Member State prior to coming to Ireland and claiming asylum. He instructed that the error was made on account of a number of factors. When interviewed by the Department of Justice official, he was extremely fearful of making any reference to time spent the EU Member State prior to arriving in Ireland as he feared that he would be returned there, believing he would subsequently be removed directly to Sudan where he would face ill-treatment and torture. Furthermore, on arrival in Ireland, he was confused and still experiencing trauma. It was never the intention of the client to fabricate an asylum claim or elaborate his account in any way but rather to protect himself against potential return to Sudan. The only error he made was only with respect of the dates, the entirety of his remaining account was truthful and correct.

Through very detailed written submissions and explanations over an extended period of time, ultimately, the Minister decided not to revoke our client’s refugee status. The case highlights the caution needed in the revocation procedure for refugees.  It is essential that the refugee has access to good standard of legal representation. However, it is questionable whether such applications fall within the remit of the Refugee Legal Service, and often refugees tend to have not option but to instruct private solicitors.  

The grounds for revocation of refugee status are set out in Section 21 of the Refugee Act 1996 . If one of those grounds exist, the Minister has a discretion to revoke the refugee status.  The act directs that the Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

When seeking to revoke the revocation status of an individual, it is noted that following the guidance of UNHCR, when considering cancellation of refugee status, it is a requirement that the decision-maker be sensitive to the particular circumstances surrounding the application for asylum.

 ‘UNHCR Note on Cancellation of Refugee Status’, paragraph 23,:

When establishing whether there was an “intention to deceive”, decision-makers must be sensitive to the special circumstances which surround applications for asylum. Traumatic experiences, time lapse or the intensity of past events often make it difficult for an applicant to speak freely and provide a full factual account without inconsistencies or confusion. Minor omissions or inaccuracies, vagueness or incorrect statements, which are insubstantial, should not be used as decisive factors undermining an applicant’s credibility, much less deemed sufficient to establish an “intention to deceive”. … In addition, it should be noted that cancellation does not serve as a “punishment” for incorrect statements.’

‘The applicant must have presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore, on balance, capable of being believed …

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 36:

Cancellation may be justified only if the (new) evidence, had it been before the determining authority at the time, could have supported a negative finding with regard to the applicant’s credibility and/or the well-foundedness of his or her fear of persecution for a Convention reason, or if it would have been sufficient to establish the existence of an exclusion ground provided for under the 1951 Convention.’

Due regard must also be given in respect to whether the revocation could be considered as a proportionate action. Any decision to revoke refugee status which could raise grave human rights concerns and be considered as  being  highly prejudicial to the individual, would lead to a potential breach of their human rights protected under the European Convention on Human Rights (ECHR). This too is reflected in the UNCHR.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph  8:

 ‘Whenever a final administrative decision is reopened with a view to its possible invalidation, the general principles of legal certainty and protection of legitimate expectations, or “acquired rights”, need to be reconciled with requirements stemming from the principle of legality … the principle of proportionality requires that the effects of invalidating a flawed decision for the person concerned be taken into consideration. The guarantees and safeguards of procedural fairness also apply.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 9:

‘In summary, irrespective of the reasons for reopening a refugee’s case, the invalidation of refugee status ab initio may be lawful only if there are grounds for cancellation, supported by adequate evidence; if the consequences of cancellation for the individual concerned are clearly not disproportionate and of a seriously prejudicial nature; and if the decision to cancel is made in due observance of the guarantees and safeguards of procedural fairness.’

Brophy Solicitors

22.1.13

UK Position on the Free Movement derivative rights of Non EEA parents of EU citizen minor children

In Ireland, the legal position of Non EEA parents of EU citizens and their right to reside/work/access welfare is still quite unclear following the Court of Justice judgments in Ibrahim, Teixeira and Chen. No guidelines have been published, nor statutory amendments made to the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended).   In the UK however the position has been recently clarified, and it is of helpful assistance for us to review these changes in the UK domestic law.

In the UK, the directive is transposed into the Immigration (European Economic Area) Regulations 2006^, as amended by SI 2009/1117  and amended by SI 2011/1247.Under Regulation 15A, a person who is not entitled to reside in the UK as a result of any other provision of the but who, nevertheless, satisfies the criteria in the sub-paragraph of Article 15A of the Amendment Regulation is entitled to a derivative right to reside in the UK for as long as he/she satisfies the relevant criteria.

CHEN CASES

Following the Chen case the UK Border Agency published guidelines for the treatment of the primary carer of an EEA national child who is exercising free movement rights in the UK, and the dependent of such a primary carer.  In Chen, it was held that by virtue of the terms of Directive 2004/38/EC (“the Directive”) a child will have an right of residence in a member state where that child:

(a) Is an EEA national,

(b) Holds sufficient resources to prevent them (and their primary carer) becoming a burden on the social assistance system of the host member state, and

(c) Holds comprehensive sickness insurance.

The guidelines also direct that such a child is entitled to be accompanied by his or her primary carer, and therefore that the primary carer of such a child will have a right of residence in the host member state until the child’s eighteenth birthday where to refuse such a right would prevent the child from continuing to reside in the UK. Dependents of primary careers who have a derivative right of residence on this basis also derive a right of residence in the UK where requiring those dependents to leave the UK would have the effect of preventing the primary carer from residing in the UK.  This right of residence is not a Free Movement right but is a „derivative right‟. This means that the recognition of this right by the UK is not equal to rights under the Directive

Primary carers with a right to reside on the Chen  basis are, since 16th July 2012, able to work in the United Kingdom regardless of whether or not documentation has been issued to them by UKBA in that capacity.

In order to establish a derivative right to reside the primary carer must also show that the child upon whom they are claiming a derivative right would be unable to continue to reside in the UK should the primary carer be forced to leave. It is considered that any child under the age of 18 would normally require the presence and care of the primary carer (where no other carer is available) in order to continue to reside in the UK.

IBRAHIM AND TEIXEIRA CASES

The UK Border agency also published guidelines implementing the Judgments in Ibrahim and Teixeira.

In the cases of Ibrahim and Teixeira, the ECJ ruled that, by virtue of Article 10 of Regulation 492/2011 (i) the children of an EU citizen who works or has worked in the host Member State (who are in education in that State), and (ii) the primary carer of those children, can claim a right of residence in that State. UKBA has also decided that dependent children of such primary carers should also qualify for a right of residence where failure to give such a right would have the effect of preventing that primary carer from residing in the UK.

Children of EEA nationals may qualify for a right of residence under regulation 15A (3) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A (3) are that the child:

(a) Is the child of an EEA national (“the EEA national parent”)

(b) resided in the UK at a time when the EEA national parent was residing in the UK as a worker, and

(c) is in education in the UK and was in education there at a time when the EEA national parent was in the UK.

A child of an EEA national who has worked in the UK, and who was in the UK while that child was in education in the UK, will therefore be entitled to a right of residence to allow them to complete their education should the EEA national either leave the UK, or no longer have a right to reside under the Regulations.

It is not necessary for the EEA national parent to have been a worker at a time when the child was in education in order for the child to benefit from this provision. The child must only have been residing in the UK at a time when the EEA national was a worker, and must have been in education at a time when the EEA national was present in the UK.

 A person who meets the definition of primary carer as set out in regulation 15A(7) may apply for a derivative residence card confirming a right of residence under regulation 15A(4) where they meet the conditions set out in that regulation. The conditions for a right to reside under 15A(4) are that:

a) The applicant is the primary carer of a person who meets the criteria set out in category (A) above; and

b) The child would be unable to continue to be educated in the UK if the primary carer were required to leave.

Although UK legislation is silent about whether these categories of individuals can work, it is widely recognized now that they can, as there are no restrictions provided for in the Regulations on those who fall within them from working. Previous legislation covering Chen parents (paragraph 257C of the Immigration Rules) prohibited them from working.

However the UK Border Guidelines stipulate as follows;

“A person who has a derivative right of residence under new regulation 15A is not subject to any restriction on taking employment in the UK. Possession of a derivative residence card evidences the fact that the holder had a derivative right at the time at which the card was issued, but only confers a right to work for as long as the holder continues to enjoy the underlying right to reside.”

Brophy Solicitors

12.12.12 

Should the state consider Subsidiary Protection applications when no claim for asylum has been made?

A case dealing with the question of whether the state is entitled to allow Subsidiary Protection applications only where an applicant has been refused refugee status has been referred by the Supreme Court to the European Court of Justice. (Haq Nawaz v Minister for Justice, Equality and Law Reform Ireland and the Attorney General 2012)

The Applicant is a Pakistani National who entered Ireland on a student visa in 2003. He married and Irish national and for that reason was granted permission to remain until December 2005. The marriage was of short duration and in February 2006, the minister notified the Applicant that he was considering issuing a deportation order. Nevertheless the applicant stayed in the country as a full time student.

The applicant did not at any time apply for asylum. He submitted that he does not fear persecution by reason of race, religion, nationality, political opinion, or membership of a particular social group and that he is therefore, not a refugee. However the applicant claims that he is afraid to return to Pakistan because of the indiscriminate violence occurring there.

In June 2009 the applicant made an application for subsidiary protection. The Minister replied stating that the basis for  making an application was that the person applying had been refused refugee status. Since no application  for refugee status had ever been made by the applicant, it was not possible to apply for subsidiary protection status.

The applicant seeks an order quashing the Minister’s decision refusing to consider his application for subsidiary protection and requiring him to determine it. Secondly he seeks a declaration that the national regulations are unlawful and incompatible with the Qualification Directive insofar as they provide that the Minister may not consider an application for subsidiary protection of a person who has not failed in an asylum application.

The applicant submits that  neither Article 78 of the treaty not the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers.

In addition he submits that he does not have a well founded fear of being persecuted for a Geneva Convention reason. He says he cannot even complete the asylum application form without selecting an untrue reason.

The applicant submits that it is contrary to the principle of good administration guaranteed by Article 41 of the charter of fundamental Rights of the European Union that he should be required to make an application for refugee status in circumstances where he accepts that he is not entitles to and does not claim that status.

The Minister argues that neither the Qualifications Directive not the regulations permitted the application to make a “stand-alone” application for Subsidiary protection. Submitting that the Geneva convention is the cornerstone of the international legal regime for the protection of refugees and that that position can only be maintained if an application for protection is assessed, first of all, to establish if the applicant in question qualifies as a refugee, with the question of eligibility for subsidiary protection being addressed only where it has been held that he does not.

Additionally the minister argues that the Qualifications Directive Is not concerned with procedures at all and does not impose and procedural obligation on a member state to accept such an application merely because a person subjectively considers that he is not a refugee.

In their consideration, the Supreme Court reiterated that the regulations do not confer any power on the minister to consider an application other that “a person whose application for asylum has been refused by the minister…”

The court considers the true question at issue in this case is whether the Qualification Directive requires Member States, in  their implementing measures, to make it possible for a third country national to make an application for subsidiary protection status without making any application for refugee status.

The Supreme court concluded that in order to determine it is necessary for the court to have answers to some questions and so has referred the case to the Courts of Justice of the European Union with the following question:

“Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental rights of the  European Union, permit a member state which has not adopted a single administrative procedure for determining both applications for refugee status and subsidiary protection status, to provide in its law, when implementing the Directive, that a third country national or stateless person be enabled to apply for subsidiary protection status only when that person has applied for and been refused refugee status in accordance with national law” .

Brophy Solicitors

 7.12.12

Duty to give reasons and the Nature of "absolute discretion" in Naturalisation Applications

The Supreme Court has quashed the Minister for Justice’s refusal to grant a Syrian lawyer a certificate of Naturalisation for Irish citizenship following the ministers failing to give reasons for his decision as he is required.

Mr. Justice Niall Fennelly noted that developing Irish jurisprudence provided persuasive evidence that it must now be “unusual” for a decision-maker to be allowed to refuse to give reasons. “Where fairness can be shown to be lacking, the law provides a remedy,” he said.

Persons affected by administrative decisions should have access to justice and the right to seek court protection to ensure the rule of law had been observed, fair procedures were applied and their rights not unfairly infringed, he said.

Syrian lawyer Ghandi Mallak and his wife came here in 2002 and both secured asylum later that year. They later applied for a certificate of Naturalisation as part of the process of seeking Irish citizenship. While his wife was granted citizenship, Mr. Malaks application was refused without explanation.

Mr. Mallak’s lawyers later sought documents under the Freedom of Information Act, including the Minister’s reasons, but were told that the minister was under no obligation to give reasons

He later appealed to the Supreme Court against the High Court’s rejection of his challenge to the Minister’s refusal to give reasons.

The applicant argued that section 15 of the 1956 Act id unconstitutional insofar as it allows the Minister to refuse to grant a certificate of Naturalisation in his absolute discretion i.e. without giving reasons. Additionally he argues that the section should be interpreted in the sense that the minister is obliged to give reasons.

Mr. Mallak also complained that the ministers decision refusing him a certificate of Naturalisation has significant consequences for a person declared a refugee as he is left effectively stateless.

The Minister argued that in cases of absolute discretion, there is no obligation to give reasons. Thus s 15 of the Act of 1956 necessarily excludes any duty to give reasons since such a duty would negate the nature of the discretion conferred.

It was highlighted that Naturalisation is granted by the minister as a matter of privilege and not a right.

Fennelly J observed that there was an emerging assumption that persons affected by administrative decisions were entitled to know the reasons for them so they could understand them and potentially appeal.

It was held that while the granting of a certificate of Naturalisation was a privilege, not a right, and the Minister had discretion in that matter, Mr. Mallak was still entitled to have his application considered in accordance with law and to apply to the courts for redress.

The extent of the Minister’s obligation to give reasons arose in the developing general principles of judicial review and by reference to the particular statutory provision, the judge said.

This judgment has widespread implications for other administrative decisions where unfairness is at issue.

Welcoming the decision, Denise Charlton, Chief Executive of the Immigrant Council of Ireland said that they:

“Continue to call on the Government to ensure that people whose applications are unsuccessful are given the reasons in writing and a right to appeal to an independent body, as well as the courts.

It is unacceptable that the protections of the Office of the Ombudsman are not extended to people using the citizenship and immigration system. This court decision has again highlighted the need for a modern, efficient and transparent immigration system which is based on justice and fairness.”

Brophy Solicitors

7.12.12

Irish times article:

http://www.irishtimes.com/newspaper/ireland/2012/1207/1224327610468.html

Immigrant council statement:

http://www.immigrantcouncil.ie/media/press-releases/617-supreme-court-ruling-should-lead-to-transparent-citizenship-decisionsimmigrant-council-welcomes-decision-in-mallak-case-statement-by-immigrant-council-of-ireland-