BJSA (Sierra Leone) v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:12 October 2011, 2011 IEHC 381, Unreported
Nature of Proceedings:Hearing re an interlocutory injunction pending a determination of leave to seek judicial review.
Judgment Date/s:12 Oct 2011
Judge:Cooke J.
Category:Refugee Law
Keywords:Child, Citizenship, Dependant, Deportation, Deportation Order, Family Life (Right to), Protection (Application for International), Protection (Subsidiary), Refugee, Removal Order, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Sierra Leone
URL:https://www.courts.ie/acc/alfresco/9b80483a-8d32-45b8-b7eb-39fb194500bd/2011_IEHC_381_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

In this case the applicant sought an interlocutory injunction restraining deportation pending the determination of an application for leave for judicial review of, inter alia, a decision refusing to grant him subsidiary protection on, essentially, two grounds: that the decision was invalid because the procedure in place under the Irish Regulations failed to properly transpose Article 4.1 of Directive 2004/83 … Read More

Principles:
  1. There is no deficiency in the Irish asylum legislative regime in respect of the failure to expressly transpose the provision in Article 4.2 of Directive 2004/38 re cooperation into Irish legislation.
  2. The co-operative nature of the first instance assessment phase in the Irish asylum process is reflected in ss. 8(1); 11(1); 11(2); 11C; and 16(6) of the Refugee Act 1996 as amended. 
  3. The deciding authority is not wholly relieved of any obligation of co-operation in appropriate cases. The process must conform to the normal rules of fair procedures.
  4. There is no requirement that a draft subsidiary protection decision be submitted to an applicant for comment before it is adopted.
  5. The right to an effective remedy by way of an appeal under Article 39 of the Directive 2005/85 applies only to subsidiary protection if it forms part of a unified procedure.
  6. There is no superior remedy in Irish law by way of appeal against a first instance determination of an asylum application, such that the procedures under the Refugee Act 1996 do not constitute a comparator with subsidiary protection for the purpose of applying the EU principle of equivalence.
  7. It is only since the requirements of Directive 2005/85 and, in particular, Annex 1, became effective in Irish law that the Commissioner is a “determining authority”, and that there is a right of appeal against a determination of the Commissioner to the Tribunal. Insofar as the provisions of the 1996 Act provide a two-stage determination for an asylum application including a right to an effective remedy by way of an appeal, this is only because of the manner in which the State adapted the arrangements of the 1996 Act in order to comply with the requirements of Directive 2005/85.
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