Izevbekhai Ors -v- MJELR Supreme CourtNeutral Citation [2010] IESC 303 JR Judgment was delivered by Mr Justice Fennelly on July 9th 2010, Mr Justice Murray, Mr Justice Hardiman and Ms Justice Macken concurring. Ms Justice Denham delivered a dissenting judgment.
Judgment
The Minister for Justice does not have discretion, under Regulations implementing an EU directive on subsidiary protection, to reopen a deportation order made prior to October 10th, 2006.
Background
This was an appeal of a refusal by the High Court of an application for judicial review of a decision by the Minister for Justice to refuse to consider an application for subsidiary protection from the appellants, Mrs Enitan Pamela Izevbekhai and her two daughters.
The appellants made an unsuccessful application for refugee status to the Office of the Refugee Applications Commissioner in February 2005 and an unsuccessful appeal to the Refugee Appeals Tribunal in April. Representations were also made on the applicants’ behalf to the Minister, all on the basis that the two children would be subjected to female genital mutilation (FGM) if they were returned to Nigeria. Having rejected their applications, the Minister for Justice issued deportation orders in November 2005.
The applicants took judicial review proceedings of the deportation orders, which were heard over three days. In January 2008 judicial review was refused. Mr Justice Fennelly commented that throughout this process the claim by Mrs Izevbekhai that her eldest daughter, Elizabeth, had died as a result of FGM was not contested.
In March 2008, the appellants applied for subsidiary protection under the European Communities (Eligibility for Protection) Regulations (SI No 518) 2006, and specifically under Regulation 4 (2), whose interpretation is the subject of the preliminary issue to be decided by the Supreme Court.
In her application she claimed that the Minister had discretion under the Regulations to consider an application for subsidiary protection, where the applicant had identified altered facts or circumstances. The Minister conveyed his decision that there were no new facts or circumstances to justify subsidiary protection, and that there was therefore no basis for him to exercise his discretion.
The applicants then took judicial review proceedings against this decision. In January 2009, the High Court found that the Minister had discretion to consider the application, but had been entitled to reach the conclusion he did on the basis that there were no new or altered facts. The appellants appealed against that decision to the Supreme Court.
In the course of the appeal it emerged that the decision of the High Court was based on an interpretation of Regulation 4 (2) which, though it had been the subject of several decisions of the High Court, had not been the subject of any decision of the Supreme Court. This court therefore invited submissions on this issue.
The question was whether Regulation 4 (2) did in fact and in law confer on the Minister a discretion to grant subsidiary protection to persons for whom a deportation had been made prior to October 10th, 2006, if the persons could show new facts or altered circumstances which significantly changed their position.
It contained the formulation, “The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3 (2) (f) applies”, that is, a person whose application for asylum had been refused.
In submissions counsel for the applicant supported the interpretation of Mr Justice Feeney in a High Court judgment, which stated that the formulation allowed the Minister exercise discretion. They argued that there was no temporal limitation, and was a continuing obligation to grant subsidiary protection. Counsel for the Minister said that the Directive did not have, and was not intended to have, retrospective effect.
Majority Decision
Mr Justice Fennelly analysed in detail the judgment of Mr Justice Feeney which found that the Minister did have discretion to consider an application where the applicant was able to identify new facts or circumstances, which was followed in a number of subsequent High Court judgments where a decision had been made prior to October 10th, 2006.
He said in his view Regulation 3 clearly limited the scope of the Regulations to cases where the intention to make a deportation order was communicated after October 10th, 2006. He said he could find no language in Regulation 4 (2) conferring on the Minister any discretion to consider applications for subsidiary protection in cases not provided for. He therefore came to the conclusion that the interpretation of Regulation 4 (2) by Mr Justice Feeney, and hence by a number of other judges of the High Court, was erroneous.
Referring to the Directive which formed the basis for the Regulations, he said that it did not address at all the status of prior deportation orders. It conferred a right from October 10th, 2006, to be considered for subsidiary protection on the defined category of persons, and said nothing about persons who had received consideration prior to that.
He therefore held that Regulation 4 (2) did not confer on the Minister discretion to reopen a deportation order made prior to October 10th, 2006.
Dissenting Judgment
Ms Justice Denham said the words “the Minister shall not be obliged to consider an application from a person . . . other than . . .” implied that while the Minister was obliged to consider some applications, others were not excluded from consideration.
Regulation 4 (4) referred to the Minister making a determination that a person was eligible for subsidiary protection, and in this case the decision that the appellants were not eligible was made after October 10th, 2006. It was a decision on eligibility for subsidiary protection that the appellants were seeking.
She said this free-standing subsection underpinned her interpretation of Regulation 4 (2) as recognising a discretion, not an obligation, of a Minister, and she said she was satisfied that the Minister had a discretion under Regulation 4 (2) to consider an application from the appellants for subsidiary protection. There was no issue of retrospectivity, as the applications for subsidiary protection arose after the notice of intention to deport, which was not the decision at issue.
Quite apart from the High Court decisions, she said she had considered the Regulations independently and had come to the conclusion that Minister did have discretion under Regulation 4 (2) to reconsider an application for subsidiary protection, though he was not obliged to do so.
The full judgment is on www.courts.ie
Michael O’Higgins SC, David Leonard BL and James Colhoun BL, instructed by Ceemex and Co, Dublin, for the appellant; Eoin McGonigal SC, Hugh Mohan SC and David Conlan Smyth, BL, instructed by the Chief State Solicitor, for the State.