The applicant purported to make a stand-alone application for subsidiary protection in Ireland in 2009. The Minister for Justice declined to determine it, on the basis that the applicant had not applied for and been refused a declaration of refugee status, which the Minister said was a condition precedent to his being eligible to apply for subsidiary protection under the EC (Eligibility for Protection) Regulations 2006, which implement Directive 2004/58/EC (the Qualification Directive) in Irish law.
The applicant issued judicial review proceedings seeking to quash the Minister’s decision. He lost in the High Court. On appeal to the Supreme Court, the issue between the parties was referred to the Court of Justice of the European Union (CJEU), in the form of 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 for by Article 41 of the Charter of Fundamental Rights of the European Union, permit a member state to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?”
The CJEU upheld the Minister’s interpretation of the law, rejecting the applicant’s contention that he was entitled to make a stand-alone application for subsidiary protection.
The CJEU emphasised that the Geneva Convention was recognised in the Qualification Directive as the cornerstone of international protection, and the complementary and secondary nature of the subsidiary protection put in place by that Directive. In the light of this, it held that an application for subsidiary protection should not, in principle, be considered before the competent authority has reached the conclusion that the person did not qualify for refugee status.
Accordingly, it held that the Qualification Directive did not preclude Irish national legislation which provided that the requirements for granting refugee status had to be considered before those relating to subsidiary protection.
The CJEU also held that the procedural rule which required the applicant to exhaust the refugee determination process before becoming entitled to have his subsidiary protection application considered, was not precluded by other rules of EU law. It agreed with the Minister that, in the absence of EU rules concerning the procedural requirements attaching to the examination of an application for subsidiary protection, the Member States remained competent, in accordance with the principle of procedural autonomy, to determine those requirements. It also held that the procedural rule at issue between the parties was not at odds with the right to good administration.
Finally, the CJEU held that it should be possible to submit an application for refugee status and an application for subsidiary protection at the same.
The CJEU therefore held that the Qualification Directive did not preclude the Regulations of 2006 from providing that an application for refugee status had to be rejected in order for the subject of it to become eligible to apply for subsidiary protection.