On the 23rd of January 2013 Mr Justice Hogan delivered judgment in the case of MM v Minister for Justice Equality and Law Reform in the High Court. This judgment has had a significant impact on applications for subsidiary protection in Ireland.
Applicants who are unsuccessful in their asylum claim can make a subsequent application for subsidiary protection to the Minister for Justice and Equality. In MM, it was found that the Minister relied entirely on the findings made by the Refugee Appeals Tribunal at the asylum application stage in coming to the decision that the applicant would be refused subsidiary protection. Mr Justice Hogan held that the Minister failed to afford the applicant a fair hearing because he made no separate and independent adjudication. He noted that his decision would have far-reaching consequences for the current subsidiary protection programme.
Brophy Solicitors currently have a number of clients who are applying for subsidiary protection. Some clients have been waiting in direct provision centres for up to five years awaiting a decision on their status and they are growing increasingly anxious about the result of their application. The decision in MM has had the impact of delaying decisions for applicants even further as the Irish Naturalisation and Immigration Service (INIS) have to devise a new system for processing applications in line with the judgment. We are also aware that the High Court has granted leave to issue judicial review proceedings in cases with already lengthy delays.
In correspondence with Brophy Solicitors, the Department has requested that our clients ‘bear with [them]’ until ‘[they have] completed the work necessary toward putting the new procedures in place.’ They gave an assurance that all of our clients who have made applications remain on file and will be dealt with as speedily as possible once the new system is in place. This is worrying for some of our clients who experience delays of up to 5 years.
The Minister spoke about the matter in response to a parliamentary question on the 11th of June 2013. He said that the MM case was under appeal to the Supreme Court but that INIS was working on devising a system for applications in the interim. He also advised that he is hoping to re-publish the Immigration, Residence and Protection Bill under which ‘it is envisaged that applications for asylum, subsidiary protection and ‘leave to remain’ will be dealt with as a single procedure.’ He advised that these legislative provisions are being given priority attention and that once they are in place, applications will be dealt with in a ‘timely manner.’
Many of our clients have been give the option to withdraw their Subsidiary Protection so that INIS can commence a speedy determination of their pending Leave to Remain applications.
Depending on the Applicant’s circumstances, this might be a good option and many clients who are waiting for up to five years or more want to avail of the quickest route in obtaining a decision. Nonetheless a positive outcome in every case is not indicated by INIS and applicants should note that a quick decision does not necessarily mean a positive decision. The difference between the two applications and the impact of a decision to withdraw a Subsidiary Protection case must be carefully explained to each client who must make an informed decision.
Katie O'Leary and Sarah Henry
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