The Irish High Court has ruled that the Minister for Justice and Equality must establish a panel of medical practitioners as required under section 23 International Protection Act 2015 (the 2015 Act) by December 2020.
The applicant is a former Albanian police officer who alleges criminals targeted him due to his association with the demolition of illegal buildings. There was an assassination attempt against him, as a result of which he suffered severe physical injuries, which are on going. He was threatened two years later and he arrived in Ireland in January 2016 seeking refugee status. Section 23 of the 2015 Act states that a medical panel to assess applicants for refugee status “shall” be established. The applicant’s solicitor sought clarification from the International Protection Office (the IPO) regarding whether a medical panel had been established “but never got a clear answer”. The applicant instituted judicial review proceedings seeking an order that the medical panel be established.
The Court held that the applicant “has a clear and present entitlement to request to have the IPO consider the invocation of s. 23, and the clear intention of the legislation is that the IPO’s consideration of whether to invoke s. 23 should be in the context of the prior existence of s. 23 panel.” The absence of a panel was not of no consequence to the applicant as it meant that he was not afforded a fair consideration of his request to be referred to a panel. The Court held “the level of justice and fair procedures demanded by the international protection process” was not achieved because a refusal of a request could appear to have been influenced by the lack of any panel, “especially since a laborious procurement process” would have to follow to establish a panel.
The respondents argued that the applicant lacked standing because section 23 is for the benefit of a class of persons in respect of whose health a question arises, which does not include the applicant because the IPO had not decided whether to exercise its discretion to activate the section or not. The Court rejected this argument stating that it “fundamentally” missed the point that the applicant can request consideration to be given to the activation of section 23. The Court also noted that the IPO had requested a consultant’s report, which meant a question as to the applicant’s health had arisen. The Court held that the IPO’s request for a consultant’s report was a “legally unsound approach” as it involved the substitution of a non-statutory mechanism for a statutory mechanism.
The respondents “confoundingly” argued that the case was both premature and out of time. The Court held that the general rule was that a process should be allowed to proceed rather than being prematurely cut off, but there are exceptions to this rule. This case came within the exceptions, because, among other things, an appeal could not provide a full remedy if no panel exists. The Court also rejected the delay argument, stating that where there is a continuing breach, time does not run until the continuing act has ceased.
The Court held that by failing to establish a medical panel as required by section 23, the respondents undermined the rule of law. The Court ordered that a medical panel be established by December 2020 and ordered a stay on the processing of the applicant’s case until the panel was established and due consideration was given to referring the applicant to it.
Click here to read the full judgment in M.R. (Albania) v The Minister for Justice & Equality & ors.