SUBSIDIARY PROTECTION – UPDATE ON THE IMPLEMENTATION OF THE NEW PROCEDURE

The processing of all existing and future subsidiary protection applications was transferred from Minister for Justice & Equality to the Office of the Refugee Applications Commissioner (ORAC) under Statutory Instrument No 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013. This involved the creation of a new determination process, which includes a second interview. Previously the application was judged on the interview with the applicant during the asylum applications, which lead to many issues in respect of fair procedure, including credibility.

For a comprehensive break down of the new determination process, please see the following information chart provided by the UNHCR: http://www.unhcr.ie/news/irish-story/subsidiary-protection-what-you-need-to-know

As January 2014 drew to a close, clients have attended interviews administrated by ORAC in respect of their subsidiary cases.

We have been informed that the format is very similar to the interviews at the asylum stage. Clients have been told that they should expect to receive a decision in respect of their applications in a month’s time.

As many applicants have been within the subsidiary protection procedure for periods extending beyond even 5 years, being finally provided with an estimated time frame regarding the determination of their case, within the near future, is greatly welcomed.

Naomi Pollock

Brophy Solicitors

IMPLEMENTATION OF THE INITIAL STAGE OF THE NEW SUBSIDIARY PROTECTION PROCEDURES

As noted recently in our blog, the guidelines for the new subsidiary protection application have now been published on INIS website. 

Our clients have now received standard forms from ORAC, who are now responsible for these applications, requesting that they confirm their intention to either remain within the procedure or opt out. As previously noted in our blog, many clients feel that the new procedure will create further delays as it involves another interviewing procedure similar to that carried out at the stage of their asylum application. It is possible to refuse to attend further interviews; however it is also possible for ORAC to insist on attendance in order for the application to be processed.

We must emphasise that although on first look remaining within the subsidiary protection process is potentially unappealing due to possible delay, the new policy has been implemented in an attempt to improve the procedure. Until now, the number of subsidiary applications granted in Ireland has been comparatively low in relation to our European counterparts. We hope that the new procedure may see improvements in this regard. Applicants cannot assume that upon withdrawing their subsidiary protection application that a leave to remain application which has been pending for some time will be considered favourably. 

Therefore, we advise that if you wish to withdraw your application, please consider the implications of doing so extremely carefully. 

If you wish to review further information regarding the procedure, please see our recent blog posts. 

Naomi Pollock

Brophy Solicitors

NEW SUBSIDIARY PROTECTION STATUTORY INSTRUMENT HAS BEEN PUBLISHED

The publication of a new subsidiary protection statutory instrument was stated this week on the INIS website.

The information notice appearing on the website informs:

"With effect from 14 November 2013, responsibility for processing all existing and future subsidiary protection applications has transferred from Minister for Justice & Equality to the Office of the Refugee Applications Commissioner (ORAC) under Statutory Instrument No 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013 (attached below) 

SI 426 of 2013 (PDF - 1134KB)

A detailed Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the regulations.

SP Information Note - 13th Nov 2013 (PDF - 48KB)"

Similarly ORAC's website also states:

"14 November 2013 - Responsibility for processing all existing and future subsidiary protection applications transfers to the Office of the Refugee Applications Commissioner under S.I. 426 of 2013, the European Union (Subsidiary Protection) Regulations 2013. SI 426 of 2013”

“14 November 2013 - Information Note explaining the new arrangements for the processing of subsidiary protection applications is also attached which you should read in conjunction with the Regulations. An ORAC Information Note on the 2013 Regulations will be available in a number of languages shortly on the ORAC website. Subsidiary Protection Information Note”

The new regulations come into effect today and notice of the making of the S.I. will be published in “Iris Oifigiúil” on Friday 15th November, 2013.

The Department of Justice has issued the following press release:

http://justice.ie/en/JELR/Pages/PR13000386

UNHCR has also released a statement today in relation to the new procedures:

http://www.unhcr.ie/news/irish-story/unhcr-welcomes-the-establishment-of-a-new-subsidiary-protection-determinati

Naomi Pollock

Brophy Solicitors

SUBSIDIARY PROTECTION APPLICATIONS

We note that the Minister for Justice and Equality has made contact with some of our clients with pending Subsidiary Protection applications advising them as to the new procedure for determination of such applications following the judgement in the MM Case. Responsibility for processing Subsidiary Protection cases has been transferred from the Irish Naturalisation and Immigration Service (INIS) to the Office of the Refugee Applications Commissioner (ORAC). The new procedure is not however in place but implementation is at an advanced stage. As expected, the procedure for applying for this type of protection reflects the asylum application procedure. Whereby clients will apply through ORAC where there will be a personal interview. For existing applicants, there is an opportunity to submit further representations at this stage. If the decision of ORAC is negative, an oral appeal can be made before the Refugee Appeals Tribunal. 

Applicants with outstanding applications are well aware of the fact that they could face a considerable, further delay in having their applications finalised having already been through the asylum application process. Many of our clients feel that they are in a vulnerable position and face the prospect of remaining even longer in State direct provision accommodation which for many is simply inadequate. We shall update our readers further when we receive more information from the Minister regarding the implementation of the new procedure.

Sarah Henry

Brophy Solicitors

A NEW PROCEDURE REQUIRED FOR SUBSIDAIRY PROTECTION APPLICATIONS

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

24.1.13

A Need for Reform

The much needed reformation of the Irish Asylum system has once again been thrust into the spotlight with the recent decision of M.M v Minister for Justice, Equality and Reform, Attorney General.

Under current legislation, the European Communities (Eligibility for Protection) Regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, s/he will be informed that the Minster proposes to make a deportation order. S/he will have the opportunity to apply to the Minister for Justice, Equality and Law Reform for permission to remain in the State on the grounds that he or she is eligible for 'subsidiary protection'. Subsidiary protection is available to a person who does not qualify as a refugee but if returned to his or her country of origin, would face a real risk of suffering serious harm as defined for the purpose of the Directive.

 On 22^nd November the European Court of Justice held in the case of M.M v Minster for Justice, Equality and Reform, Attorney General, that Ireland’s system of subsidiary protection does not comply with the right to be heard, a fundamental principle of European Union Law. 

Applicants for subsidiary protection make a paper application to the minister, who on the basis of this application and asylum makes a decision. The government argued as the applicant has a right to be heard in the application process, it is unnecessary to hear the applicant again in the subsidiary protection procedure.

The Court of Justice firmly rejected this argumentation. The Court noted as Ireland has established two separate procedures for dealing with asylum and subsidiary protection, an applicant has the right to be heard in the context of both procedures.

Ireland is in fact the only EU country not to have a single asylum and subsidiary protection procedure. In Ireland, an applicant must first apply for asylum – a process which may take years, and receive a firm rejection of their asylum before qualifying as eligible to apply for subsidiary protection.

The complicated and cumbersome nature of the Irish Asylum application process was also recently highlighted in the decision last month in the Supreme Court case Okunade v Minister for Justice Equality and Law Reform & the Attorney General, [2012] IESC 49 (2012). The Supreme Court granted injunctions restraining the deportation of a Nigerian woman and her five year old Irish-born son while they challenged their deportation order and a ministerial decision refusing them subsidiary protection. Overturning the decision of the High Court, the Supreme Court found that the deportation order constituted a disproportionate interference in the family life of the young boy who knew no other country than Ireland. The Asylum process of this country was held to be the blame for the amount of time the family had resided here.

Brophy Solicitiors

30.11.12 

Asylum ruling quashed by Supreme court

In a unanimous decision last week, the supreme court held that the High Court had wrongly refused injunctions halting the deportation of a Nigerian woman and her Irish-born child  pending a decision on their challenges of deportation orders and refusal of subsidiary protection.

The test case raises broad issues affecting other cases and shines a light on the result of delaying decisions asylum cases over a number of years.

In this case the court found that the interference of family life of four-year-old Daniel Okunade, who “knew no other country but Ireland” and who could not be culpable for long delays in dealing with his case, was enough  to allow the injunction.

With over 1000 asylum cases pending in this country, the supreme court determined that the “extremely complicated” and “cumbersome” laws regarding  deportation and subsidiary protection contribute considerably  to delays and add to the court’s difficulties.

 http://www.irishtimes.com/newspaper/ireland/2012/1017/1224325338894.html

Brophy Solicitors

17.10.12

Burmese man not entitled to subsidiary protection

The Irish Times on Monday, 20^th August 2012, reported a decision made by the High Court regarding the application for subsidiary protection by a Burmese national. The court refused to review a decision refusing subsidiary protection to the Burmese man. The decision was reached because Mr Justice Cooke determined that his story lacked credibility, and the Court did not believe that he would suffer serious harm if returned to Burma.

The man had initially applied for asylum in Ireland after leaving Burma in 2008 due to religious clashes. He is a member of the Rohingyen ethnic minority, and claimed to have lived in a refugee camp with his uncle in Bangladesh. At the camp, he was offered a job in a religious group whose practices were banned in Bangladesh, and after overhearing a conversation regarding his forced removal to Afghanistan, he fled to Ireland, where he immediately claimed asylum. His claim was unsuccessful, and he proceeded to apply for subsidiary protection. The article reports that his council cited that “this was based on the fact that members of the Rohingyen minority suffered mistreatment, discrimination and hardship, and the danger of his being sold to Afghanistan constituted a threat of ‘serious harm’.” However, his application for subsidiary protection was refused, and he brought the matter before the High Court for a review, stating that “the Minister had not made a finding that the applicant was not a member of the Rohingyen minority. He argued he was therefore obliged to consider the treatment he might receive as a Rohingya if returned to Bangladesh. He said the Minister did not consider this in his refusal to grant subsidiary protection.”

However, Mr Justice Cooke ultimately refused the review, letting the decision rest as is. He ruled that while a member of the Rohingyen minority may face “economic and social difficulties” in Bangladesh, this did not constitute “serious harm” as is necessary to obtain subsidiary protection.

Brophy Solicitors

21.08.12

http://www.irishtimes.com/newspaper/finance/2012/0820/1224322492435.html

Minister’s Decision Quashed on Basis of Failure to Consider New Information in Subsidiary Protection Application

Case Study: Zhara Murkhtar v The Minster for Justice and Equality [2012] IEHC 123

The applicant claims that the respondent erred in failing to give any weight to the corroborative evidence she submitted from the Red Cross in relation to her subsidiary protection application and in rejecting the probative force of such evidence without giving any reasons for doing so.

The respondent submitted that the Minister dealt with the decision by indicating that the Red Cross documents were not accepted as documentary evidence of the applicant’s identity or nationality due to reasons of credibility. In essence the respondent was saying that the overwhelming findings in relation to credibility were not overturned by these documents.

The applicant arrived in the State in October 2008 claiming to be a Somali national. Her application for refugee status failed as she was said to have given false information in her application by failing to disclose that she had been to the UK.  In December 2010 the applicant made an application for subsidiary protection. The Minister notified her that her application would be processed on the basis that she was a Kenyan national as she had submitted to the UK authorities. The Red Cross had earlier notified the applicant that they had traced her mother and husband, but she did not submit these documents to the RAT or ORAC. The applicant’s solicitors later included these documents submitting that they proved that she was Somali rather than Kenyan. The Irish Red Cross tracing file indicated that the applicant’s family members had been located using the applicant’s correct details rather than those on the Kenyan passport used to obtain the UK visa.

The Minister analysed country of origin info in relation to Somalia and concluded that if returned there, the applicant would run a real risk of indiscriminate violence if she were of Somali ethnicity. The decision maker stated that the Red Cross documents tracing her family members would not be accepted as documentary evidence of the applicant’s identity or nationality. There is no stated or detailed reason as to why the documents were not accepted.

The High Court found the adverse credibility findings of the RAT or ORAC could not qualify the validity of the Red Cross documents as being documentary evidence. They gave evidence suggestive of Somali nationality and the credibility decisions of the RAT and ORAC were arrived at without the benefit of these documents. In any event the issue before the Minster was not whether the applicant was credible in her story but rather whether she was from Somalia or Kenya to be considered entitled to subsidiary protection. An applicant may be entirely un-credible in relation to their evidence but still qualify for subsidiary protection because of the nature of the country they are likely to be forced to return to.

The High Court was of the view that the decision maker had a duty to consider the new information received in relation to the applicant’s identity, especially as the only issue in the Ministers decision was whether the applicant was from Kenya or Somalia. The failure of the Minster to consider the new corroboratory information, whether or not he regards it as being documentary evidence of the applicants identity or nationality, is a breach of duty as is the failure of the Minister to state any reason for discounting or rejecting as unauthentic the value of those documents.The applicant was entitled to an order of certiorari taking up and quashing the decision of the respondent that the application is not eligible for subsidiary protection.      

Brophy Solicitors

18.05.12

                 

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

Update on Subsidiary Protection and Somali Claims

Last week we attended a very instructive training on recent developments on Subsidiary Protection (Article 15(c) of the Qualification Directive) and Article 3 of the European Convention of Human Rights (ECHR). The training was part of a series of masterclasses  by the Irish Refugee Council. 

Colm O'Dwyer BL took the morning session providing a helpful overview of recent developments in Ireland. Ronan Toal, a barrister at Garden Court Chambers in the UK, then shared his specialist knowledge and expertise in the application of subsidiary protection and Article 3 to Somali claims in particular.

A number of recent cases were discussed in the course of the training. Of particular interest was the most recent reported UK case dated 28^th November 2011 that considers the situation in southern and central Somalia and claims for protection: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG. Following the decision of the Grand Chamber of the European Court of Human Rights in Sufi & Elmi v the United Kingdom [2011] ECHR 1045, AMM and others provides extensive further country guidance for southern and central Somalia. It is the first reported case in the UK to have found that there was a risk of serious harm to the claimant within the meaning of Article 15(c) in circumstances where there was no such risk arising under Article 15(b) or Article 3 ECHR. Essentially the Court held that a claim for subsidiary protection under Article 15(c) could be made out even in circumstances where there was no breach of Article 3 ECHR.

Ronan Toal also drew attention in the training to the findings in the decision in AMM and Others in relation to a claim under the Refugee Convention. The Court held that a claim for protection on grounds of religious persecution could be made out under the Refugee Convention where an individual was not in a position to comply with the strict al Shabaab religious rules.

These recent developments have implications for Somali asylum applicants who have previously been refused asylum. In light of the dire security and humanitarian situation in southern and central Somalia, a claim for subsidiary protection may be made out. Our own experience is that there continue to be lengthy delays in the Department of Justice determining. Furthermore, applicants for subsidiary protection may now be in a position to submit a new claim for asylum, particularly if they have been out of Somalia for a long period and are in a position to show difficulties they would have conforming with the strict al Shabaab regime.

Brophy Solicitors

23.01.12