The applicant was a national of Molova who applied for asylum in the State and was unsuccessful. He was also refused subsidiary protection and a deportation order was made against him. The applicant argued inter alia that the process by which the subsidiary protection scheme operated in Ireland with the deportation/leave to remain procedure was in breach of EU law and rendered the refusal of the subsidiary protection decision unlawful. It was in breach of the principles of equivalence and effectiveness.
In the Court’s view, one ground raised a sufficiently arguable point to warrant the grant of leave. This was the manner in which the ‘Qualifications Directive’ (Directive 2004/85/EC) has been implemented by the ‘Protection Regulations’ 2006, where the opportunity to apply for subsidiary protection has been incorporated into the procedure leading to the making of a deportation order under s. 3 of the Immigration Act 1999. Regulation 4(1) of the 2006 Regulations requires that the notification given by the Minister of a proposal under s. 3(3) of the Act of 1999, to make a deportation order in respect of a failed asylum seeker must include a statement that if the asylum seeker considers that he or she is a person eligible for subsidiary protection, “he or she may, in addition to making representations under s.3(3)(b) of that Act, make an application for subsidiary protection to the Minister within the fifteen day period” stipulated in the notification.
In most, if not all, cases the notification under s. 3(3) is given in what is referred to as the “three options letter” in which the failed asylum seeker is informed that the Minister proposes to make a deportation order but offers the asylum seeker a choice between leaving the State voluntarily before any order is made; agreeing to submit to the making of the order and, alternatively, applying for temporary leave to remain and additionally making an application for subsidiary protection. The applicant argued that by placing the entitlement to apply for subsidiary protection within the context of the choice to be made between these options, the combined effect to Regulation 4(l) and s. 3 was to place an inhibition on the making of an application for subsidiary protection which is incompatible with the scheme of the Qualifications Directive and general principles of EU law.
On that basis, the Court granted leave to challenge the decision on this ground only. It formulated the ground as follows:
“By confining the right to apply for subsidiary protection to the circumstance in which the asylum seeker’s entitlement to remain lawfully in the State pursuant to s. 9(2) of the Refugee Act 1996, has expired and a decision has been taken to propose the deportation of the applicant under section 3(3) of the Immigration Act 1999, Regulation 4(1) of the 2006 Regulations in conjunction with s. 3 of the said Act of 1999, has the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant which is ultra vires Council Directive 2004/83/EC of the 29th April, 2004, and is incompatible with general principles of European Union law.”