Thursday, January 24, 2013


A significant judgement was delivered today by Mr Justice Hogan in the case of MM v The Minister for Justice which will have far reaching effects on the current subsidiary protection procedure in Ireland.

Mr Justice Hogan held that the Minister for Justice  had failed to afford the applicant an effective hearing at subsidiary protection stage because the Minister had relied completely on the adverse credibility findings made by the Refugee Tribunal regarding the applicant’s claim of harm he may suffer in his country of origin, and because the Minister did not afford the applicant an independent and separate adjudication of these claims.

Mr Justice Hogan’s decision was reached in light of the recent comments of the Court of Justice,  made in response  to the High Court’s reference  to the Court of Justice on the same case.  The Court of Justice  had criticized the current system in Ireland where applicants  must apply for subsidiary protection separately and subsequently to the asylum application, in circumstances where they have no opportunity for a fresh hearing to address the adverse credibility  findings made against them at the asylum stage.  The Court of Justice ‘s reasoning was that if Ireland wished to have a separate application procedure for subsidiary protection, this separate procedure must be fully distinct from the asylum application procedure and the findings made therein. 

Mr Justice Hogan applied the Court of Justice’s reasoning to the Applicant in the MM case to find that the subsidiary protection decision was unlawful and must be quashed, because the Minister had relied entirely on the reasons advanced by the Refugee Appeal Tribunal to reject the credibility  of the applicant’s claim.  No separate or distinct investigation was carried out. The applicant was therefore not afforded an effective hearing at the subsidiary protection stage. 

The consequences of this decision are very significant. Most refusals of subsidiary protection applications are arrived at to a large extent by the deciding officer’s  reliance on adverse credibility findings by the Refugee Appeals Tribunal.   This procedure is now deemed legally flawed and in breach of EU law. The Minster is now clearly on notice that he is required to afford the applicant an opportunity to revisit such matters in the context of an “effective hearing”, which currently does not exist.  

Mr Justice Hogan has proceeded to envisage what  this “effective hearing” would involve  at a minimum level. He indicates that the applicant would  be invited to comment on any adverse credibly findings made by the Refugee Appeals Tribunal, the applicant would be given an opportunity to revisit all matters bearing on the subsidiary protection claim, and the Minister would carry out a completely fresh assessment of the applicants credibility . 

It may be the case that an oral hearing will be required, but will not necessarily be required in every case of subsidiary protection. 

This decision means that the Minister will have to put in place a new or significantly amended procedure for subsidiary protection  applications. Until this happens, each decision may also be deemed to be unlawful.  Mr Justice Hogan acknowledges the far reaching consequences of this decision for the practical administration of the subsidiary protection scheme, and suggests that it is a matter that the Oireachtas might urgently address.  

Brophy Solicitors

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