Mr and Mrs Gavrylyuk were Ukrainian nationals of Romanian ethnicity. They applied for asylum in Ireland, claiming that they were being wrongly prosecuted in Ukraine for tax offences. Their applications were refused and they made applications for humanitarian leave to remain in the State. These applications were also refused and deportations orders were made in respect of them in March 2004. In March 2007, Mr and Mr Gavrylyuk made applications for subsidiary protection. These applications were made pursuant to the EC (Eligibility for Protection) Regulations 2006 (‘the Regulations’), which had come into force in October 2006. The Regulations transposed the Qualifications Directive 2004/83/EC into Irish law. In their application for subsidiary protection, Mr and Mrs Gavrylyuk claimed that they were at risk of imprisonment in Ukraine and that, if imprisoned, the conditions to which they would be subjected would amount to cruel, inhuman and degrading treatment.
The Minister refused to consider these applications on the grounds that persons against whom deportation orders had already been made were not eligible to apply for subsidiary protection. The Minister’s response was grounded on an interpretation of Regulation 4(2) of the Regulations. In NH and TD v. Minister for Justice, Equality and Law Reform  IEHC 277, the High Court held that the Minister’s interpretation of Regulation 4(2) was flawed and that he had a discretion to accept subsidiary protection applications from persons against whom deportation orders had already been made before the coming into force of the Regulations. Accordingly, in November 2007, the Minister wrote to Mr and Mrs Gavrylyuk, inviting them to make submissions to invoke the Minister’s discretion. This they duly did.
In March 2008, the Minister replied that they had not identified new facts or circumstances which demonstrated a change of position from that at the time the deportation orders had been made, the Minister had decided not to accept and consider their subsidiary protection applications. The couple applied to the High Court to have this decision quashed by way of judicial review. Their case was heard together with the case of Mr Bensaada, whose case was similar in nature.
Mr Bensaada was an Algerian national who claimed asylum in Ireland on the basis of a stated fear of persecution in Algeria at the hands of Islamic extremists. His application was refused. A deportation order was made against him in March 2003. His attempts to have this order revoked or quashed came to nothing, and the deportation order was affirmed in October 2004. Mr Bensaada was still present in the State when the EC (Eligibility for Protection) Regulations 2006 came into force in October 2006. He made an application for subsidiary protection in December 2006. As in the case of Mr and Mrs Gavrylyuk, his application was initially rejected, but he was later invited to make submissions seeking to invoke the Minister’s discretion to accept and consider his application. He made such submissions, but the Minister concluded that no new facts or circumstances had been identified, and refused to accept and consider his application. He too challenged this decision in the High Court.
The High Court held that the Minister does not have an obligation to reconsider the situation of any person in respect of whom a deportation order was made prior to the coming into force of the Regulations but that the Minister retains a discretion under Regulation 4(2) to accept and consider an application for subsidiary protection from an applicant who is able to show that a change of circumstances has arisen since the deportation order was made. The High Court was satisfied that Mr and Mrs Gavrylyuk had not shown any such change of circumstances, and dismissed their application. However, in the case of Mr Bensaada, the Court noted the Regulations imported a definition of torture broader than that contained in the UN Convention against Torture Act 2000, and that Mr Bensaada’s application ought to have been considered in the light of this wider definition. Accordingly, the Court quashed the Minister’s decision with respect to Mr Bensaada’s application.