EMS v Minister for Justice, Equality and Law Reform

Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2004] 1 IR 536
Judgment Date/s:10 Jun 2004
Category:Refugee Law
Keywords:Refugee, Refugee Law, Refugee Status
Country of Origin:South Africa

The Minister refused to grant refugee status to the applicant, a South African national. The applicant subsequently asked the Minister to consent to allow him to make a fresh application for asylum pursuant to Section 17(7) of the Refugee Act 1996. The Minister refused to give this consent and the applicant sought to challenge the refusal by way of judicial review.

The applicant contended that the refusal was not subject to the special rules for judicial review in Section 5 of the Illegal Immigrants (Trafficking) Act 2000 and argued that a negative decision under Section 17 of the Refugee Act 1996 should be considered a “refusal” only if it is expressly described as such in that section.

The Supreme Court rejected the applicant’s argument, finding that there was no ambiguity in the legislation and that no basis had been advanced for giving the word “refusal” in Section 5(1)(k) of the 2000 Act anything other than its ordinary and natural meaning.


A failed asylum seeker is entitled to go to the relevant bodies established under the asylum legislation to make a new application for asylum where there is fresh evidence that another claim has been successful on essentially the same facts. The Minister should not rule out the possibility of an applicant having a further claim considered where there is a realistic prospect that a favourable view could be taken of the new claim.

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