Asylum appeals process in need of reform


LEGAL OPINION:On January 23rd Mr Justice Hogan handed down judgment in the High Court in a case that has implications for the administration of subsidiary protection claims in Ireland.

In MM v. Minister for Justice and Law Reform Ireland and the Attorney General (No. 3) IEHC 9, he ruled that the Minister for Justice is required to reach his own view on the claim submitted by reassessing the applicant’s credibility and cannot simply rely on the decisions reached in the earlier asylum claim.

Furthermore, that an applicant should be invited to comment on any adverse credibility findings by the Refugee Appeals Tribunal and be given an opportunity to revisit any relevant matter.

The Hogan judgment followed the Court of Justice of the European Union (CJEU) in Case C-277/11, MM v Minister for Justice, Equality and Law Reform on his referral to the Court on a point of EU law. The CJEU took the opportunity to comment on the unique split system in Ireland and determined that there was a breach of a fundamental right to be heard before a decision is taken which would adversely affect the applicant.

The CJEU referred the case back to Mr Justice Hogan to decide the implications of their judgment for the case before him and for the system adopted in Ireland.

The origins of the problem created by this judgment lie in the system introduced in Ireland when it transposed an element of the Common European Asylum System known as the “Qualification Directive” into Irish law. Since October 2006, Ireland, in line with other EU states, has provided foreign nationals who fear “serious harm” if returned to their country with an opportunity to submit an application for “subsidiary protection”.

This is a paper application without an interview before a decision or an appeal if refused. “Serious harm” includes the death penalty or execution, torture or inhuman and degrading treatment or punishment, or a serious and individual threat from indiscriminate violence in a situation of international or internal armed conflict.

Unlike other EU states, Ireland’s Eligibility for Protection Regulations which transpose the Directive, created a system whereby subsidiary protection claims are submitted at a different stage and decided separately to the asylum claim. The subsidiary protection application form, which applicants are required to complete, suggests that it is a separate application. The only reference to the previous asylum claim is to documentary evidence submitted in support of that application which the applicant may want to rely upon again.

But in practice decisions on subsidiary protection claims have relied heavily upon previous negative decisions on the asylum claim, regardless of the quality of those decisions or submissions or new evidence provided on behalf of the applicant which call into question those decisions. Most decisions to refuse asylum are based on a finding that the applicant lacks credibility, casting a shadow on any subsequent application. Research carried out by the Irish Refugee Council, analysed in the report Difficult to Believe, suggests that decision makers will too readily make a negative credibility finding.

The foundations of the difficulties created for the Department of Justice by Mr Justice Hogan’s decision are not found solely in the split procedure whereby a person must have been refused asylum before they can claim subsidiary protection. They also lie in the fact that a subsidiary protection application can only be submitted after the Minister has indicated his intention to deport that person. In other words, a train of events has been set in motion which is going in the direction of a person’s expulsion from the state.

So the mindset of the Minister is in favour of deportation. Therefore, if an application for subsidiary protection is refused, the decision to refuse is followed by a deportation order with no right of appeal against either decision. Immigration officials are then required to effect the deportation order by removing the person to their country of origin. So the question is whether the procedure in place is a genuine attempt to determine the risk to a person if returned to their country, or is in fact a nominal process with no serious intent to protect from harm.

The need for reform of the international protection process in Ireland has long been recognised. The Minister for Justice has indicated his intention to bring legislation before the Oireachtas which will include a single protection procedure wherein asylum and subsidiary protection claims can be considered at the same time with a right of appeal against refusal. The decision in MM is a further indication that reform is not only needed but cannot wait any longer.

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