The applicant had been granted leave to seek judicial review on one ground, namely whether the Minister’s decision to refuse to grant the applicant subsidiary protection contravened Regulations 5(1) and (2) of the European Communities (Subsidiary Protection) Regulations 2006 (S.I. No. 518 of 2006) by failing to consider and state a conclusion on the claim made by the applicant that she had suffered serious harm and that there were compelling reasons as evidenced by reports on her medical condition which made her eligible for protection based on previous serious harm alone.
The applicant, a Ugandan national, claimed, inter alia, that she had been regularly beaten, raped, and burned with melted plastic on many occasions. A medico legal report stated that her scars were consistent with her claims. The Court noted that the term ‘consistent’, in this context, is a term of art (SGK (Ethiopia) v Minister for Justice, Equality and Law Reform, High Court, 5 July 2011 noted). The Court stated that the widely dispersed nature of the applicant’s scars strongly suggested that the applicant was the victim of the intentional infliction of injury by another which would not appear to have been caused by accident, and that the judgment preceded on this basis.
The Refugee Appeals Tribunal had refused the applicant’s appeal stating, inter alia, that even if it were in a position to conclude that the applicant had suffered past persecution, the country information did not support a claim that the applicant would face persecution, in the future, for a Convention reason if returned to Uganda. The Minister later concluded that the applicant was not entitled to subsidiary protection, finding that the applicant had not shown substantial grounds that she would face a real risk of suffering serious harm if returned to Uganda.
The Court stated that while Regulation 5(2) of the 2006 Regulations mirrors Article 4(4) of Directive 2004/83/EC, it goes further in that its final proviso – “but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection” – finds no counterpart in the Directive.
The Court accepted that the counter exception provision in Regulation 5(2) was an incidental and supplemental provision to the transposition of Directive 2004/83/EC within the meaning of Section 3(2) of the European Communities Act 1972 (MST v Minister for Justice, Equality and Law Reform  IEHC 529 applied; Case C-175/08 et seq.., Aydin Salahadin Abdulla  ECR I-000 noted.). The Court opined that the ‘super-added’ provision must be treated essentially as a species of national law that hovers over the terms of Article 4(4) of the Directive, but which must be interpreted in a manner compatible with the Directive. The Court further accepted that the ‘super added’ provision must be construed as adding to Article 4(4) in a manner which is in ease of the applicant by providing for a more favourable standard for determining eligibility for protection per Article 3 of the Directive.
The Court stated that the task for the Minister was three fold:
- to ask himself whether the applicant had suffered serious harm in the past. If the answer to this question was yes, the Minister was required
- to ask whether there were good reasons to consider that such serious harm would not be repeated if the applicant was returned to her country of origin. If the answer to that question was yes, the Minister was still required
- to apply the counter exception and ask whether there were compelling reasons arising out of previous persecution or serious harm alone such as might warrant a determination that the applicant was eligible for protection.
In respect of (1), the Court found that while the Minister took the view that there were many other possible causes for the injuries in question, the Minister was still obliged to address the question of whether the applicant did in fact suffer serious harm in the sense of the Regulations, namely, whether the injuries were inflicted by State actors in the manner alleged. The Court found that this was a critical question that the Minister reached no firm view on. The Court held that the Minister was required to ask whether in light of the country information if it is possible that the injuries were inflicted by State actors (Pamba v Minister for Justice, Equality and Law Reform, High Court, 19 May 2009, Cooke J. noted with approval). The Court found that the Minister did not address his mind to whether the applicant suffered serious harm as per Regulation 5(2). In the alternative, the Court found that the reasons for the conclusion on whether the applicant suffered serious harm were not sufficiently clear (Meadows v Minister for Justice, Equality and Law Reform  IESC 3,  2 IR 701 followed).
Re (3), the Court found that if the Minister was satisfied that there was no reason for considering that the previous harm would be repeated, he was obliged nonetheless to consider whether the historic serious harm may be such that the fact of its occurrence alone gives rise to compelling reasons for recognising eligibility (MST followed). The Court found that the Minister did not give any consideration to the counter example.
The Court opined that a curious feature of the 2006 Regulations is that Article 2(1) defines ‘actors of persecution or serious harm’, but the term is nowhere else used in the Regulations.