On 22 November 2012, the Court of Justice of the European Union (CJEU) in the case of MM v Minister for Justice ruled that the Irish system of subsidiary protection does not comply with a fundamental principle of EU law, namely, the right to be heard.
Subsidiary protection is available to a person who does not qualify as a refugee but would face a real risk of suffering serious harm if returned to his or her country of origin.
The area of subsidiary protection is governed by EU law and Council Directive 2004/83/EC commonly known as the Asylum Qualification Directive. This Directive has direct effect and was transposed into Irish law by the European Communities (Eligibility for Protection) Regulations 2006.
Under the regulations, when an unsuccessful asylum applicant is informed that his or her application for refugee status has been refused, she/he will be informed that the Minister proposes to make a deportation order. The failed asylum seeker will then 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'. Applicants apply by written application to the minister who on the basis of this application makes a decision.
The Irish government argued that it is unnecessary to hear the applicant in the subsidiary protection application procedure since the applicant has a right to be heard in the asylum application process. The CJEU rejected this argument and stated that since Ireland had two separate procedures for dealing with asylum and subsidiary protection, the applicant has a right to be heard in both.
At present, Ireland is the only EU country not to have a single asylum and subsidiary protection procedure. An applicant must first apply for asylum (a lengthy process) and be refused before qualifying as eligible to apply for subsidiary protection. The Immigration Residence and Protection Bill 2010 introduces a single procedure for asylum and subsidiary protection claims. Minister Shatter stated in the Dail that it is his intention to republish the Immigration Residence and Protection Bill 2010 later this year.
Click here to read the full judgment.
Click here to read an article from the Irish Immigration Blog.
In related news, on 29 November, the Irish Supreme Court decided to make an order for reference to the CJEU on the question of subsidiary protection in the case of Nawaz v Minister for Justice Equality & Law Reform and ors.
“Ireland has implemented a regime whereby it is necessary to have applied for and to have been refused refugee status before an application for subsidiary protection can be brought. The question of European Union law which arises is as to whether such a regime is compatible with the obligations on Ireland contained within the qualification directive”
The applicant Mr Nawaz argued that the Asylum Qualification Directive requires that he be entitled to apply for subsidiary protection without first making an application for refugee status. He argued that the current system which requires him to make a “false” claim for asylum is inconsistent with the Directive.