Court rules family entitled to hearing over ‘outsourcing’ of asylum investigation

Five-judge court unanimously overturns a High Court judge’s refusals of the family’s applications for leave for judicial review

Photograph: Alan Betson / THE IRISH TIMES

Photograph: Alan Betson / THE IRISH TIMES

 

An Albanian mother and her two daughters are entitled to a hearing of their claim that the Refugee Applications Commissioner unlawfully outsourced consideration of their asylum applications to outside contractors, the Supreme Court has ruled.

A number of similar claims are pending. The family claim the outsourcing process in place since 2015 meant the only investigation of whether to recommend they get asylum was by an outside contractor drawn from a panel of law graduates in breach of the Refugee Act 1996.

In a significant decision on Wednesday, the five-judge court unanimously overturned a High Court judge’s refusals of the family’s applications for leave for judicial review.

The proceedings will now go to the High Court for hearing.

In concurring judgments, Ms Justice Elizabeth Dunne and Mr Justice Donal O’Donnell quashed decisions by the High Court’s Mr Justice Richard Humphreys refusing the family leave for judicial review. Both judges, whose judgments were endorsed by the Chief Justice Mr Justice Frank Clarke, Mr Justice Liam McKechnie and Ms Justice Iseult O’Malley, found the family had established substantial grounds for judicial review.

The grounds are: 1) the Refugee Applications Commissioner (RAC) had not itself investigated their asylum applications as required by Section 11 of the Refugee Act and 2) the High Court judge had not properly applied the law concerning the obligation not to depart, without sufficient reason, from a decision of a colleague judge of the same rank. Section 11 states it is the Commissioner’s function to investigate the asylum application for the purpose of ascertaining whether to recommend to the Minister for Justice the applicant should be declared a refugee.

Ms Justice Dunne noted the RAC established, about 2013, a “case processing” panel of legal graduates initially for subsidiary protection applications but expanded in 2015 to applications for refugee status. The panel members were engaged as contractors under a contract for services and were made up of solicitors, barristers or other law graduates.

The family argued the RAC had no power to delegate its functions under the Act to the panel members and claimed the “final” RAC report to the Minister, required under Section 13 of the 1996 Act, was effectively identical to a “draft” Section 13 report prepared by a panel member.

Ms Justice Dunne said there is a “clear distinction” between the power of delegation by the RAC for an “investigation” of an asylum application under Section 13 of the 1996 Act and the power of delegation under the subsidiary protection regulations. Section 13 confined the delegation to RAC staff while functions of the RAC concerning applications under subsidiary protection regulations can be delegated to contractors.

Whether or not steps by the contractor in a Section 13 investigation is ultimately found to be an unlawful delegation or not could only be decided via a judicial review hearing involving argument from both sides, she said.

The application for leave for judicial review was made ex parte, one side only represented, and the RAC may, at the full hearing, provide other evidence that “could change the picture”, she added.

Addressing the second ground, she said the fact another judge granted leave on the same point in other cases was “surely of some relevance”. While Mr Justice Humphreys had said he was refusing leave because he considered the point raised was without merit, there appeared to be no good reasons why leave was not granted in this case.

If leave was not granted and the other cases succeeded, that would surely lead to an injustice for this family, she said.

In his judgment making observations on the second ground, Mr Justice O’Donnell said the “approach”, rather than a “rule”, is that a High Court judge should not lightly depart from a previous High Court decision unless there are strong reasons for doing so.

The matter raised questions of “prudence, practicality and the necessity for judicial humility” and the important issue of equality before the law.