On 14 March 2011, the High Court had granted the applicant leave to seek to judicial review in respect of his claim that the procedures in place under the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), which implement in Irish law Directive 2004/83/EC, contain a structural flaw. The applicant, who had applied for subsidiary protection, without prejudice to the instant challenge, contended that the arrangements under the 2006 Regulations were flawed because the Respondent Minister had not been formally designated as a ‘determining authority’ as required by Article 4.1 of Directive 2005/85/EC. It was pointed out that in Annex I to Directive 2005/85/EC provision was made to enable Ireland to regard the Refugee Applications Commissioner as being the ‘determining authority’ re asylum, while subsidiary protection applications in the State are made to and determined by the Respondent Minister, without an appeal.
The Court considered, inter alia, Article 3.4 of Directive 2005/85/EC, which provides:
“Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection.”
For the Court, this meant that Member States must achieve the common procedural standards in the asylum process and were free, but not obliged, to apply the same procedures in any other form of international protection, including subsidiary protection.
The Court considered, inter alia, Article 3.3 of Directive 2005/85/EC, which provides:
“Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 [of Directive 2004/83/EC], they shall apply this Directive throughout their procedure”
For the Court, this meant that where Member State has a ‘single combined procedure’ for asylum and subsidiary protection, the minimum standards must apply to that unified procedure, such course not having been taken in Ireland.
The Court stated that Directive 2005/85/EC applied only to asylum, except where a Member State availed of Article 3.4 of that Directive (Case C-431/10 of 10 April 2011 [2011] ECR I-000 noted). The Court held that this construction of the Directive was a full answer to the ground sought to be advanced.
The Court further held that as a matter of Irish law the Minister was the ‘determining authority’, that being clear from Regulation 4 of the 2006 Regulations, which provides that the Minister is the authority to whom applications for subsidiary protection are made, and who is the authority that determines whether an applicant is a person eligible for subsidiary protection.
The Court stated that Union law does not prescribe what legislative or administrative instrument should be employed at national level re the designation of a ‘determining authority’, subject to the principles of equivalence and effectiveness (Case C-339/87 Commission v Netherlands [1990] ECR I-851 noted).
