Friday, December 7, 2012

Should the state consider Subsidiary Protection applications when no claim for asylum has been made?

A case dealing with the question of whether the state is entitled to allow Subsidiary Protection applications only where an applicant has been refused refugee status has been referred by the Supreme Court to the European Court of Justice. (Haq Nawaz v Minister for Justice, Equality and Law Reform Ireland and the Attorney General 2012)

The Applicant is a Pakistani National who entered Ireland on a student visa in 2003. He married and Irish national and for that reason was granted permission to remain until December 2005. The marriage was of short duration and in February 2006, the minister notified the Applicant that he was considering issuing a deportation order. Nevertheless the applicant stayed in the country as a full time student.

The applicant did not at any time apply for asylum. He submitted that he does not fear persecution by reason of race, religion, nationality, political opinion, or membership of a particular social group and that he is therefore, not a refugee. However the applicant claims that he is afraid to return to Pakistan because of the indiscriminate violence occurring there.

In June 2009 the applicant made an application for subsidiary protection. The Minister replied stating that the basis for  making an application was that the person applying had been refused refugee status. Since no application  for refugee status had ever been made by the applicant, it was not possible to apply for subsidiary protection status.

The applicant seeks an order quashing the Minister’s decision refusing to consider his application for subsidiary protection and requiring him to determine it. Secondly he seeks a declaration that the national regulations are unlawful and incompatible with the Qualification Directive insofar as they provide that the Minister may not consider an application for subsidiary protection of a person who has not failed in an asylum application.

The applicant submits that  neither Article 78 of the treaty not the Qualification Directive limits the right to apply for subsidiary protection to failed asylum seekers.

In addition he submits that he does not have a well founded fear of being persecuted for a Geneva Convention reason. He says he cannot even complete the asylum application form without selecting an untrue reason.

The applicant submits that it is contrary to the principle of good administration guaranteed by Article 41 of the charter of fundamental Rights of the European Union that he should be required to make an application for refugee status in circumstances where he accepts that he is not entitles to and does not claim that status.

The Minister argues that neither the Qualifications Directive not the regulations permitted the application to make a “stand-alone” application for Subsidiary protection. Submitting that the Geneva convention is the cornerstone of the international legal regime for the protection of refugees and that that position can only be maintained if an application for protection is assessed, first of all, to establish if the applicant in question qualifies as a refugee, with the question of eligibility for subsidiary protection being addressed only where it has been held that he does not.

Additionally the minister argues that the Qualifications Directive Is not concerned with procedures at all and does not impose and procedural obligation on a member state to accept such an application merely because a person subjectively considers that he is not a refugee.

In their consideration, the Supreme Court reiterated that the regulations do not confer any power on the minister to consider an application other that “a person whose application for asylum has been refused by the minister…”

The court considers the true question at issue in this case is whether the Qualification Directive requires Member States, in  their implementing measures, to make it possible for a third country national to make an application for subsidiary protection status without making any application for refugee status.

The Supreme court concluded that in order to determine it is necessary for the court to have answers to some questions and so has referred the case to the Courts of Justice of the European Union with the following question:

Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided by Article 41 of the Charter of Fundamental rights of the  European Union, permit a member state which has not adopted a single administrative procedure for determining both applications for refugee status and subsidiary protection status, to provide in its law, when implementing the Directive, that a third country national or stateless person be enabled to apply for subsidiary protection status only when that person has applied for and been refused refugee status in accordance with national law” .

Brophy Solicitors

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