High Court: Unreasonable delay in granting subsidiary protection warrants compensation

About this case:

• Judgment:
  External link

In the High Court, it was found that the failure to communicate a decision within a year was in breach of the woman’s constitutional and E.U. law rights, with Justice Michael White condemning the lack of explanation offered for the delay.

Background

The woman, A.S and her husband, P, are the parents of D.N who was born in Ireland in December 2007.

In January 2006, A.S came to Ireland and, with her husband, applied for asylum seeking refugee status – however this application was refused.

A.S and her husband then applied for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations 2006 (Statutory Instrument No. 518 of 2006) and made further representations for leave to remain in the State pursuant to s. 3 of the Immigration Act 1999.

The procedure for subsidiary protection was initiated in 2007, however due to a number of issues explained in the judgment, the effective date of the application for subsidiary protection was the 25th January 2010.

On 1st May 2012, the Irish Naturalisation and Immigration Services (INIS) granted A.S subsidiary protection.

Applications made for Child Benefit by A.S

From April 2008, A.S made several applications for child benefit in respect of D.N, but these were refused until April 2013 when A.S was notified that she had been awarded child benefit for D.N with effect from 1st May 2012 – the date on which subsidiary protection was granted.

A.S’s appeal against that decision was rejected by the Appeals Officer.

In the High Court, A.S was granted leave to argue that the Appeals Officer’s decision was wrong in that it was not backdated to the date of birth of D.N, or the date of the first application for child benefit in April 2008.

The High Court

Justice White stated that if the Minister for Justice and Equality “or its agents are responsible for culpable delay in considering a subsidiary protection application”, the Minister for Social Protection “has no discretion pursuant to present social welfare legislation to allow for that if a subsidiary protection claim is successful, while Irish nationals who qualify for child benefit if they can show good cause can have the claim backdated to the date of entitlement, and while they to establish habitual residence and be a qualified person, Section 246(8) specifically applies to those seeking asylum”.

“If an applicant for refugee status or subsidiary protection or other application to remain in Ireland is in direct provision for a very lengthy period of time, it is incumbent on the Minister for Justice and Equality to ensure that their applications are processed within a reasonable time”.

Furthermore, “any applicant also has the responsibility to process his or her application within a reasonable time and the processing agency cannot be held responsible for the delays attributed to applicants, which includes any legal challenge to the process’.

Justice White was satisfied that all of the substantive information required by the Irish Naturalisation and Immigration Service was received by April 2010; yet the decision to grant subsidiary protection was not made for two years, in May 2012.

As such, Justice White criticised the lack of explanation proffered for this delay.

While not binding, the Court approved the opinion of Advocate General Bot in Case C-277/11, M. v. Minister for Justice, Equality and Law Reform & Ors, in which it was stated that it was “manifestly unreasonable” that a procedure for subsidiary protection should take over two years.

Justice White stated that the “application for subsidiary protection should have been finalised by at least 1st May 2011”; and that the delay combined with the effect of s. 246(8) of the Social Welfare Consolidation Act 2005, “breached the applicants’ constitutional and E.U. law rights”.

Refusing a number of the reliefs sought, and declining “any reference to the Court of Justice of the European Union”, Justice White granted “a declaration that the delay in granting subsidiary protection to A.S from 1st May 2011, to 1st May 2012, was inordinate and in breach of the applicants’ rights and of the duties of the second, third and fourth respondents under European law, and the Constitution.”

Accordingly, A.S was entitled to compensation amounting to a year of Child Benefit payments, totalling €1640 plus costs.