The applicant was a national of Pakistan and from the Swat Valley. He arrived in Ireland in 2003 on a student visa. He married an Irish national and was granted permission to remain in the State until 2005. The marriage ended and the Minister notified him that his permission to be in the State was not being renewed as he was no longer living with his wife. Thereafter he had no legal entitlement to be in the State.
The applicant wished to apply for subsidiary protection in the State without first having to apply for refugee status. He did not apply for asylum and stated that he did not have a fear of persecution for one of the reasons specified in the Refugee Convention and therefore he was not a refugee. He claimed, instead to fear returning to Pakistan because of the indiscriminate violence there, particularly in the Swat Valley to which he said it was unsafe for him to return, and where he would be at risk of suffering serious harm within the meaning of Article 15(c) of the ‘Qualification Directive’ (Directive 2004/85/EC).
He claimed that the European Communities (Eligibility for Protection) Regulations 2006 (’Protection Regulations) were incompatible with and failed to properly transpose the ‘Qualification Directive’ in requiring him to make a claim for refugee status despite knowing he did not qualify prior to allowing him to make a claim for subsidiary protection.
The Supreme Court noted its previous jurisprudence that Regulation 4(2) of the ‘Protection Regulations’ does not confer any power or discretion on the Minister to accept and consider applications for subsidiary protection other than in the cases provided for i.e. those whose asylum applications had previously been refused by the Minister. The Court also noted that Ireland was the only Member State which had not adopted a single administrative process applying the ‘Procedures Directive’ (Directive 2005/85/EC) to claims for both refugee status and subsidiary protection. The applicant stated that he feared serious harm as defined in Article 15(c) of the ‘Qualification Directive’.
The Supreme Court held that it was clear that in Irish law the applicant could not make an application for subsidiary protection without having first made an application for, and been refused refugee status. The result is that he must have the status of a failed asylum seeker before he can even make the application for subsidiary protection.
The Court considered that the true question was whether the ‘Qualification Directive’ required Member States, in their implementing measures, to make it possible for a third country national to make an application for subsidiary protection without making any application for refugee status.
In order to determine whether the Minister was obliged to consider the applicant’s application for subsidiary protection in the absence of a determination that he was not entitled to refugee status, it was necessary to establish whether it is compatible with the ‘Qualification Directive’ for Irish law to provide that an application for Subsidiary protection will not be considered unless the applicant has already applied for and been refused refugee status.
The Supreme Court referred the following question to the European Court of Justice for preliminary ruling in accordance with Article 267 TFEU:
“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?”