FURTHER UPDATES IN RESPECT OF SUBSIDIARY PROTECTION

On the 8th May 2014, the European Court of Justice delivered the much awaited decision of Case C-C604/12; HN v Minister for Justice and Law Reform.

The Court has held that Directive 2004/38, the principle of effectiveness and the right to good administration do not preclude a national procedural rule, such as that in place in Ireland, under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that firstly it is possible to submit the application for refugee status and the application for subsidiary protection at the same time and secondly that the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court. 

HN concerned the Minister’s refusal to consider Mr. N’s application for subsidiary protection status on the basis that he had not previously submitted an application for refugee status. For further details, please refer to our blog post dated 7th December 2012: http://brophysolicitorsimmigration.blogspot.ie/2012/12/should-state-consider-subsidiary.html

The decision again thrusts into the spotlight the abundance of problems in relation to subsidiary protection in Ireland, which have lead to unacceptable delays in the assessment of individual’s right to subsidiary protection. It is noted that changes have been instigated following the decision of MM v Minister for Justice, Equality and Law Reform, through the implementation of the Statutory instrument 426 of 2013 (http://brophysolicitorsimmigration.blogspot.ie/2013/11/new-subsidiary-protection-statutory.html) which has transferred responsibility for the processing of the applications to ORAC. This has included individual’s undergoing a second interview, in an attempt to address credibility concerns, and many of our clients have subsequently received positive decisions in respect of their applications. 

Despite this progress, it is still necessary for applicants in Ireland to conclude their entire refugee application and appeal prior to being permitted to lodge an application for subsidiary protection. In light of the Court of Justice’s judgment, it is urged that the new system be amended at this early stage to accommodate the making of subsidiary and asylum applications simultaneously. Such amendments will further serve to address concerns in respect of fair procedure and good administration, credibility, costs and moreover will bring the Irish system in line with that of our European counterparts. 

Naomi Pollock

Brophy Solicitors