A.S.A. v Minister for Justice and Equality


ASA v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court, Supreme Court
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Nov 2022
Judge: MacMenamin J.
Category:Asylum, Refugee Law
Keywords:Asylum Applicant, Carltona Principle, Deportation, Leave to Remain, Protection (International), Return
Country of Origin:Nigeria

 Facts: The appellant was a national of Nigeria. He submitted an application for international protection in 2016, which was unsuccessful. The appellant was informed that an International Protection Officer (IPO) had recommended he not be granted refugee status or subsidiary protection pursuant to section 39 of the International Protection Act 2015. He was subsequently informed that the Minister for Justice had refused him permission to remain, pursuant to section 49(4)(b) of the 2015 Act. This decision was signed by an officer described as “Case Worker, International Protection Office”. 

In a judicial review, the appellant submitted that there was a conflict of roles in decision making, whereby IPOs consider applications for international protection and might also consider permission to remain applications as officers of the Minister. In the High Court, Burns J. dismissed the challenge, highlighting that the two roles were distinct under the 2015 Act. This ruling was appealed.  

Reasoning: Central to this case was whether IPOs are precluded from engaging in permission to remain decision-making under section 49 of the 2015 Act.  

MacMenamin J. first examined the applicability and understanding of the Carltona principle, whereby officials acting on behalf of a Minister are presumed to be acting as the alter ego of that Minister. MacMenamin J. held that, despite submissions on behalf of the appellant to understand the principle differently, for the purposes of this case, the long-established understanding of the principle would be applied and it was through this prism that the decision-making under the 2015 Act was examined.  

Reviewing the 2015 Act, and in particular section 74 of the Act, which sets out the role of an IPO, it was held that there was no legislative intention to create an absolute segregation of types of decision makers but that, importantly, in either role – as an officer of the Minister or as an IPO – the individual must be entirely independent in carrying out their functions of decision-making.   

MacMenamin J. further considered what effect, if any, EU asylum law would have on the case, namely the Asylum Procedures Directive 2005/85/EC and the Qualifications Directive 2004/83/EC. The CJEU, in B and D (C-57/09 and C-101/09), stated that where a Member States has discretion to grant state protection in accordance with its national law, this must not be confused with international protection and that there must be a clear distinction between both. MacMenamin contended that the 2015 Act  established a clear distinction between international protection and leave to remain procedures and statuses. Further, he recalled that this distinction was not at issue in this case, but rather this case concerned decision-making powers.  

Decision:  There was no conflict of roles or functions between an IPO involved in the international protection decision-making process and an officer involved in the permission to remain decision making process under section 49 of the 2015 Act. The High Court ruling was affirmed.  

Principles:There is no conflict of roles or functions exists between an international protection officer in their role in the international protection procedure, and an officer of the Minister in their role in permission to remain decisions under section 49 of the 2015 Act.
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