In this case the applicant sought an interlocutory injunction restraining deportation pending the determination of an application for leave for judicial review of, inter alia, a decision refusing to grant him subsidiary protection on, essentially, two grounds:
- that the decision was invalid because the procedure in place under the Irish Regulations failed to properly transpose Article 4.1 of Directive 2004/83 in respect of an obligation for the decision maker to cooperate with the applicant; and
- that the subsidiary protection procedure in place, in having no appeal, was flawed in light of the principle of equivalence.
The Court considered whether the applicant’s case demonstrated a fair issue to be tried, as required for an interlocutory injunction. Re (1), the ‘cooperation’ point, the Court said that implicit in the applicant’s argument was the proposition that subsidiary protection had been enacted as an independent entitlement with a stand alone right to an assessment and adjudication, including a right to an appeal. The Court held found this proposition to be unfounded and based on a mistaken understanding of the role of subsidiary protection in the common asylum system. The Court stated that Directive 2004/83 is not concerned with procedure, minimum procedural standards being laid down exclusively in Directive 2005/85, and, except where a Member State employs a single or unified procedure covering both forms of protection, such not being the case in Ireland, Directive 2005/85 imposes no minimum procedural standards in respect of the processing of applications for subsidiary protection.
The Court found there was no deficiency in the Irish Regulations by reason of the absence of any express repetition of the words “in co-operation with the applicant”. The Court opined that the co-operative nature of the first instance assessment phase is reflected in the Irish legislative regime, particularly in, for example, the initial interview of an arriving applicant under s. 8(1) of the Refugee Act 1996; the duty and function of the Commissioner to investigate the application under s. 11(1) of that Act; the interview of the applicant under s. 11(2) and the powers of the Commissioner to make all necessary inquiries and obtain information; and by the reciprocal duty of an applicant to co-operate in the investigation under Article 11C of the Act and the power of the Tribunal under s. 16(6) to request the Commissioner to conduct further inquiries. The Court stated that this is not to say that the Minister, as the deciding authority under the Irish Regulations, is relieved of an obligation of co-operation in appropriate cases. The process must conform to the normal rules of fair procedures.
The Court held that the claim that co-operation requires a draft determination be submitted for comment before it is adopted, to be unfounded because, inter alia, it is inconsistent with the express terms of Directive 2005/85. The Court stated that where Article 4.1 of Directive 2004/83 refers to the duty of co-operation in respect of the application, it meant “application for international protection”. The Court noted that Article 14.2 of the Procedures Directive recognises that the report of the personal interview may be communicated to the asylum seeker after the decision has been adopted, and opined that it would be inconsistent with this for a duty of cooperation in Article 4.1 to be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision to an applicant for prior comment.
The Court held that there was no deficiency in the manner in which Directive 2004/83 had been transposed in national law. Furthermore, the Court held that as the right to an effective remedy by way of an appeal under Article 39 of Directive 2005/85 applies only to the subsidiary protection procedure if it forms part of a unified procedure, the Irish Regulations, therefore, were not deficient in not providing an appeal in respect of subsidiary protection.
In respect of (2), the ‘equivalence’ issue, for the Court, the immediate flaw in the applicant’s argument was that, as a matter of Irish law, there was no superior remedy by way of appeal against a first instance determination of an asylum application, so that the procedures under the Refugee Act 1996 did not constitute a comparator for the purpose of applying the EU principle of equivalence. The Court opined that at least until 1 December, 2007 (the date of expiry of the period for transposition of Directive 2005/85), the Refugee Act 1996 provided that the only definitive determination of an asylum application was that made by the Minister under s. 17(1) of that Act, and neither the Commissioner nor the Tribunal had any competence to make a negative decision in respect of an asylum application.
The Court stated that it is only since the requirements of Directive 2005/85 and, in particular, Annex 1, became effective in Irish law that the Commissioner’s s. 13 report fell to be considered as a first instance determination by a “determining authority”, and that there has been right of appeal to the Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of an appeal, this is only because of the manner in which the State adapted the arrangements of the 1996 Act in order to comply with the requirements of Directive 2005/85.
The Court opined that the uncertainties encountered in the judgment of the UK Supreme Court in F.A. (Iraq) v. Secretary of State for the Home Department [2011] UKSC 22] have no relevance to the legislative and administrative position in Ireland. The Court stated that the uncertainties in the UK arose because the UK opted for a single unified procedure such that by virtue of Article 3.3 of Directive 2005/85 an effective remedy by way of appeal against the joint decision on the two forms of protection was obligatory.
For all these reasons, the Court was satisfied that the test for granting an interlocutory injunction had not been made out.
