Both applicants had been refused declarations of refugee status, had been refused leave to remain and were the subjects of deportation orders. Both applied for subsidiary protection contending that they had an automatic right to apply for subsidiary protection pursuant to the European Communities (Eligibility for Protection Regulations 2006) S.I. No. 518/2006 and Council Directive 2004/83/EC.
The Minister stated that their applications were invalid and had to be refused as the applicants’ deportation orders pre-dated the coming into operation and the transposition of the Directive on 10 October 2006 and that he had no discretion to consider the applications. The applicants sought to quash the Minister’s refusals to consider their applications.
The Court found that the intention of the Directive was to identify minimum standards and that insofar as the Directive identified obligations that did not apply within Ireland prior to the coming into effect of the Directive, the Directive imposed higher standards than those previously in operation. The Court found that the definition of torture that the Minister had to consider prior to the transposition of the Directive was narrower than that contained in Article 15 of the Directive in that previously the definition of torture was limited to acts or omissions done or made or at the instigation of, or with the consent or acquiescence of a public official (Section 186 Criminal Justice Act 2006, as amended).
The Court also found that the limitation present in the protection from refoulement of provision of Section 5(1) of the Refugee Act 1996, that the threat be on account of an applicant’s race, religion, nationality, membership of a particular social group or political opinion, was not present in Article 15 of the Directive and that with regard to the definition of serious harm in Article 15, it did not appear that consideration of Section 5 of the Refugee Act 1996 would result in the Minister having considered in every case matters that he was now obliged to consider under Article 15’s definition of serious harm.
The Court held that while people in respect of whom deportation orders are made after 10 October 2006 have an automatic right to apply for subsidiary protection, Regulation 4(2) gives the Minister a discretion to consider applications for subsidiary protection from other applicants, that to reject such applications without regard to that discretion would be in breach of the Minister’s obligations and that if a person who has been refused leave to remain is able to identify new facts or circumstances arising after the determination of that application, the Minister has a discretion to allow such a person apply for subsidiary protection. The Court stated that relevant altered circumstances could include a claim that an applicant’s personal position was effected by the Directive’s definition of serious harm and might arise as a result of the passage of a prolonged period of time resulting in altered personal circumstances or alterations in an applicant’s country of origin. The Court subsequently quashed the Minister’s refusal to consider the applications.