The applicants, a Nigerian national and her Irish born (but non Irish citizen) child, sought leave to challenge their negative subsidiary protection decisions and deportation orders. They claimed that the Qualification Directive had been incorrectly transposed in that the subsidiary protection process was enmeshed in the deportation process, that a subsidiary protection applicant was particularly disadvantaged by the fact that he was faced with a threat of a life-long deportation order should the application fail, and that domestic law failed to require that the Minister cooperate with the applicants.
The applicants claimed too that a failed asylum seeker who has been ineligible for subsidiary protection is entitled to a right of appeal equivalent to that available for the protection of a comparable right. Finally, the applicants claimed there was a lack of an effective remedy in that there was only the remedy of judicial review. The said that the case law had held that the remedy of judicial review was sufficiently flexible to vindicate the applicants’ rights.
Reasoning & Decision
The Court held that the fact that national law provides for a right of appeal before the Refugee Appeals Tribunal re asylum is not a reason for provision for a full appeal re subsidiary protection.
The Court further held that before the decision maker considers the issue of subsidiary protection the applicant must be at that time a failed asylum seeker liable for deportation. The Court opined that an applicant for subsidiary protection in the State is under advantages compared with applicants elsewhere in the Union in that, for example, having already been given a decision on asylum, he can consider whether to make an application for subsidiary protection and fine tune the submissions he might make. The Court held that the applicants in the instant case had not made out how they had been prejudiced or deprived of any rights by way of any supposed lack of equivalence.
In respect of the effective remedy argument, the Court opined that in the Donegan case the Supreme Court had said that the mechanism applied therein was entirely inadequate when fundamental rights were involved, whereas the situation in the instant case was entirely different from that in Donegan in that here there had been analysis of the essential factual issues, while in Donegan, there was at no stage any such analysis of the essential factual issues in dispute.