Irish High Court ruling on the Subsidiary Protection System in Ireland
On 23 January, the Irish High Court in MM v Minister for Justice delivered a significant judgment on subsidiary protection which may lead to major changes in that part of the system.
The Court held that the Minister for Justice had failed to give the applicant an effective hearing at subsidiary protection stage since, firstly, the Minister had relied completely on the adverse credibility findings made by the Refugee Appeals Tribunal (RAT) on the applicant’s claim of harm he may suffer in his country of origin; and secondly, the Minister did not afford the applicant an independent and separate adjudication of these claims.
This decision was made in light of the recent comments of the Court of Justice of the European Union (CJEU) in the same case. Bulletin readers will remember that the Irish High Court had previously made a preliminary reference to the CJEU in MM. The European Court ruled that the Irish system of subsidiary protection does not comply with a fundamental principle of EU law, namely, the right to be heard. The Court criticised the current system in Ireland where applicants must make a separate and subsequent claim for subsidiary protection, in circumstances where they are afforded no opportunity for a fresh hearing.
Judge Hogan acknowledged the far reaching consequences of the decision for the practical administration of the scheme and suggested the Oireachtas should urgently address the matter.
Click here to read the judgment
Click here to read a Brophy’s Immigration Blog article
Irish Supreme Court rules that greater transparency is required in naturalisation decisions
On 7 December 2012, The Irish Supreme Court in the case of Mallack v Minister for Justice, quashed the Minister’s refusal to grant the applicant a certificate of naturalisation for Irish citizenship following the Minister’s failure to give reasons for his decision.
The applicant, a Syrian lawyer, had successfully applied for asylum in 2002. His application for a certificate of naturalisation was denied. In reaching his decision, the Minister had used his “absolute discretion” under the Irish Nationality and Citizenship Acts 1956 and 1986 (as amended).
Justice Cooke in the High Court, by way of judicial review, found that the Minister was not obliged to furnish reasons for his decision because firstly, the legislation gave the Minister “absolute discretion” to grant or refuse a certificate of naturalisation; and secondly, the decision left the applicant in no worse a position than he had been before the decision was made.
The case was appealed to the Supreme Court who overturned the Ministers refusal to grant citizenship to the applicant due to lack of transparency. According to the Court “the Minister was under a duty to provide (Mr Mallak) with reasons for his decision to refuse his application for naturalisation” and that “his failure to do so deprived Mr Mallak of any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds”
Click here to read the full judgment
Click here to read a Brophy’s Immigration Blog article on the case