The Nigerian national applicants were failed asylum seekers who subsequently applied for subsidiary protection. The Minister refused their applications and they sought to quash those decisions by way of review. The applicants argued that subsidiary protection was a right under EU law and not a matter of Ministerial discretion, that they were entitled to a consideration of their claims for subsidiary protection in a manner divorced from the Refugee Act 1996. The Court refused the relief sought.
The Court found that an applicant for subsidiary protection must, as a matter of law have already ventilated the facts and circumstances regarding the claimed risk of persecution, and that it is only upon rejection of such a claim that applicants are entitled to make an application for subsidiary protection. The Court said that the primary focus in such an application is any risk to which an applicant alleges he or she would be subject if returned, considered in the light of the situation in terms of peacefulness and the functionality of ordinary protection of that country. The Court noted that in defining the right to be protected against serious harm, the legislation focuses on attacks or threats by human agency and that this definition excludes the state of health of an applicant.
The Court said that the primary focus for decision making regarding subsidiary protection was on obtaining reliable and up to date country of origin information, and that it was not necessary for the Minister to engage in a dialogue with an applicant for subsidiary protection. The Court stated that a primary question in considering an applicant’s claim for subsidiary protection should be whether what is contended for is new, or has already been the subject of an asylum determination. The Court held that if substantially new material is put forward it must be given a fair and reasoned consideration and that nothing in the Procedures Directive requires that the decision making process as to whether a non-citizen is entitled to subsidiary protection should be the same as that for refugee status.
