The appellant purported to make a stand-alone application for subsidiary protection to the Minister for Justice under the EC (Eligibility for Protection) Regulations 2006. The Minister replied that he was not entitled to make such an application because he had not been refused a declaration of refugee status, never having applied for same. The appellant unsuccessfully challenged that decision by way of judicial review in the High Court, and appealed the decision of the High Court to the Supreme Court, which then referred the following question to the Court of Justice of the European Union (CJEU):-
“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 held that the principle of effectiveness and the right to good administration did not preclude a national procedural rule of the sort provided for in Irish law, provided that, first, it was possible to submit the application for refugee status and the application for subsidiary protection at the same time, and, second, the national procedural rule did not give rise to a situation which the application for subsidiary protection was considered only after an unreasonable length of time, which was a matter to be determined by the referring court.
The CJEU therefore rejected the Appellant’s contention that he was entitled to make a stand-alone application for subsidiary protection and upheld the interpretation of the legislation maintained by the Minister, namely that before she was obliged to consider an application for subsidiary protection, the person making it had to have applied for, and been refused, a declaration of refugee status. However, at paragraph 57 of its ruling, the CJEU added a rider, which was that a person ought to be able to lodge applications for refugee status and subsidiary protection simultaneously.
When the matter came back before the Supreme Court for the CJEU’s ruling to be applied, the appellant sought argue that it ought to quash the impugned decision of the Minister on the ground that the CJEU had allegedly found that Irish law was not compliant with EU law because it did not permit applications for refugee status and subsidiary protection to be made simultaneously. He also contended that there had been unnecessary delay in the processing of his application for international protection, and sought damages on account of such delay.
The court dismissed the appeal.
The court considered that the issue raised by the appellant could not have been clearer, i.e. that he was not obliged to apply for refugee status prior to making an application for subsidiary protection, and that the CJEU had ruled against him on that. He could not claim to be entitled to an order of certiorari in respect of the Minister’s refusal to consider his stand-alone application for subsidiary protection, as that refusal was perfectly lawful.
The court therefore refused the appellant relief.