Supreme Court: Applicants repatriated to Nigeria were not denied effective remedy

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The applicants sought to challenge a 2012 High Court ruling which refused to grant them leave to commence judicial review proceedings on three grounds, however Justice Charleton was satisfied that there had been careful scrutiny of their case and that they had not been denied an effective remedy.

Background

The applicants, AAA and her three infant children JAA, EAA, and SAA, came to Ireland in 2007 when the mother was pregnant.

It was alleged that violent circumstances caused the father and another child to disappear – however these allegations were found to be incredible when examined by the Refugee Applications Commissioner and the Refugee Appeals Tribunal.

In August 2010, the Refugee Appeals Tribunal rejected their claim to qualify for refugee status.

They were then informed by the Minister that they were entitled to apply for leave to remain on humanitarian grounds and to apply for subsidiary protection.

In June 2011, the applications to remain were rejected by the Minister; and deportation orders were signed by the respondent Minister in September 2011.

In December 2011, all of the applicants were repatriated to Nigeria.

In May 2012, Cooke J refused to grant leave to the applicants to commence a judicial review proceeding on three grounds:

Cooke J granted the applicants leave to apply for judicial review on the following sole ground: that the deportation orders were invalid by reason of the Minister for Justice not having personally considered whether the State’s non-refoulement obligations would be breached by the deportation of the Applicants. In September 2013, McDermott J refused the application for judicial review.

In the Supreme Court, the applicants sought to appeal the May 2012 judgment of Cooke J.

Delivering the judgment of the three-judge Supreme Court, Mr Justice Peter Charleton explained that their present circumstances were unknown, but that they continued to instruct their solicitors on the appeal.

Subsidiary protection

Regulation 2(1) of the European Communities (Eligibility for Protection) Regulations 2006 states that a person is entitled to subsidiary protection where, not being a national of a Member State of the European Union, not qualifying for refugee status, and not being a war criminal, is a person “in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm” and “is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”.

Refoulement, the return of a person from a country where they are safe to a country where they will be at risk of being persecuted, is forbidden in international law and by s 5 of the Refugee Act 1996.

Considering FN v Minister for Justice 1 IR 88, and Case C-285/12, Diakite v Commissaire général aux réfugiés et aux apatrides; Justice Charleton stated that the applicants were not eligible for subsidiary protection as they did not advance credible evidence to the Minister which demonstrated that they were at serious risk of indiscriminate violence from armed conflict.

As such, any situation of illegal expulsion from the State argued to be part of a scheme of undermining international protection did not arise.

Effective remedy

The applicants argued that they had been denied an effective remedy since the decision of the Minister was not subject to judicial scrutiny.

In particular, it was argued that the absence of a right of appeal with the possibility of an ex nunc review amounted to a denial of an effective review.

Considering FN v Minister for Justice 1 IR 88, Nascimento v The Minister for Justice 1 IR 1, and Meadows v Minister for Justice 2 IR 701; Justice Charleton said that it remained the case that “where the principle of proportionality is relevant… the onus rests on an applicant to establish that the decision is disproportionate”.

Considering NM v The Minister for Justice, Equality and Law Reform IECA 217, ISOF v Minister for Justice, Equality and Law Reform IEHC 457, and Case C-69/10, Diouf v Ministre du Travail, de l’Emploi et de l’Immigration; Justice Charleton was satisfied that judicial review was an effective remedy, and that in the absence of any express provision in the Procedures Directive (2005/85/EC) requiring Member States to provide for a right of appeal distinct from judicial review, any other conclusion would seem at variance with the fundamental principle of EU law of national procedural autonomy.

Right to be heard

Justice Charleton said that the question of entitlement to an oral procedure on applying for subsidiary protection after two prior oral procedures was said by the Court of Justice to be dependent upon any claim of “specific vulnerability of the applicant, due for example to his age, his state of health or the fact that he has been subjected to serious forms of violence”.

On the basis of what was asserted, Justice Charleton was satisfied that there were no circumstances which would reasonably give rise to the necessity for another oral procedure.

Conclusion

Affirming the decision of Cooke J to refuse leave on the aforementioned three grounds, Justice Charleton emphasised that there had been careful scrutiny of the case made by the applicants, and that the Court already ruled there was an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union.