Facts:
The applicant was born in Cameroon in 1965. He worked as a journalist and with an NGO and claimed to have experienced persecution in Cameroon, including arrest, detention and torture. He fled to Nigeria in 1999 and was recognised as a refugee there in 2001. He claims to have been threatened by a Cameroonian diplomat in Nigeria, and in 2002 fled to Mali via Ghana. He was granted refugee status in Mali in 2003 but subsequently left Mali as a result of difficulties with the authorities related to his role in an organisation that was opposed to FGM. He arrived in Ireland and claimed refugee status in September 2005. In his initial application he stated his nationality as “stateless? {Cameroonian}”. His claim was assessed on the basis that he was stateless with reference to each of his countries of habitual residence as Mali, Nigeria and Cameroon.
The applicant was refused refugee status and subsidiary protection and subsequently brought judicial review proceedings challenging the refusal of subsidiary protection on the basis that his claim should not have been assessed on the basis that he was stateless, and that the only country with reference to which his claim should have been assessed was his country of nationality i.e. Cameroon. The High Court dismissed this challenge and the applicant appealed.
The first issue which arose on the appeal was whether an applicant for subsidiary protection may be considered both as a national of a third country and a stateless person simultaneously. The applicant argued that they may not, but the Minister argued that there was a distinction between people who are “de jure” stateless and “de facto” stateless, and contended that “stateless” is used in both senses in the Qualification Directive and that it was therefore possible to be simultaneously both a national of a state and stateless for the purposes of the Qualification Directive and the domestic regulations.
Reasoning:
The Court of Appeal noted that there was no decision either of the Court of Justice or the Irish courts which recognised the concept of “de facto” statelessness, and referred to UNCHR reports as well as the decision of the English Court of Appeal in B2 v Secretary of State for the Home Department [2013] EWCA Civ 616. It was further noted that the term “stateless person” is not defined in the Qualification Directive nor in any other EU provision.
The Court of Appeal referred to the decision of the CJEU in HN v Minister for Justice Equality & Law Reform (Case C-604/12) (paras.27 and 28) where it was held that the Qualification Directive must be interpreted in a manner consistent with the Geneva Convention. Accordingly the Court of Appeal concluded that the Qualification Directive in using the term “a stateless person” in the definition of “refugee” in Article 2(c) is using this term to connote the second category of persons referred to in the definition of refugee in the Geneva Convention, namely persons “not having a nationality”. This meant a person who was de jure stateless but did not include a person who was de facto stateless. The Court of Appeal held that a person who is an applicant for subsidiary protection therefore either has a nationality or is stateless but cannot simultaneously be considered as both having a nationality and being stateless. In circumstances where the decision-maker accepted that the applicant was a national of Cameroon, that was the only country against which the applicant’s claim should have been assessed, and the decision-maker therefore erred in law in also assessing the applicant’s claim with reference to Mali and Nigeria.
Decision:
Appeal allowed.
