I would like to thank the Deputy for raising this issue today.
The judgment of Mr. Justice Hogan in the High Court in the case of M.M. v.
Minister for Justice, Equality and Law Reform, delivered on 23rd January,
2013, deals with an applicant’s right to be heard in the context of an
application for Subsidiary Protection. Mr. Justice Hogan’s judgment,
delivered after a preliminary ruling by the European Court of Justice, has
interpreted this concept to mean that there may be instances where a
particular applicant may require a hearing particularly in circumstances
where he or she wishes to challenge negative credibility findings made by
the Refugee Applications Commissioner or the Refugee Appeals Tribunal which
might be relied upon by the Department of Justice and Equality in arriving
at a decision in that individual case.
This judgment has significant practical implications for the current
Subsidiary Protection process.
The High Court has flagged the need for additional procedural steps to
ensure that subsidiary protection applicants are guaranteed the right to an
effective hearing. The details in this regard, which are set out the
Court's decision, are under examination in the Department of Justice and
Equality in consultation with the Office of the Attorney General to see how
the current administrative procedures might be adapted to bring them into
line with the Court's judgment. Given the number of subsidiary protection
applications which are currently waiting to be processed, it is critically
important that every effort is made to continue processing activity both
from the State's perspective, owing to the substantial cost to the
exchequer of maintaining protection applicants, but also for applicants
themselves many of whom have been waiting for some time for a final answer
to their request for the State's protection or failing that for permission
to remain.
As a result, Mr. Justice Hogan’s judgment is being studied in great detail
by officials in the Department of Justice and Equality.
The present arrangements for dealing with subsidiary protection
applications were always intended to be temporary pending the enactment of
the Immigration, Residence and Protection Bill. Work on the details of the
Immigration, Residence and Protection Bill 2010 is ongoing at the
Department pursuant to current Government policy which is committed, under
the Programme for National Recovery, to "introduce comprehensive reforms of
the immigration, residency and asylum systems, which will include a
statutory appeals system and set out rights and obligations in a
transparent way". The Bill provides, inter alia, for the introduction of a
single application procedure for the investigation of all grounds for
protection and any other grounds presented by applicants seeking to remain
in the State. This change of the processing framework will remove the
current multi-layered and sequential processes associated with the existing
system and address the issues arising from the High Court's decision in
this case.
The Minister for Justice and Equality, Mr, Alan Shatter, T.D. has outlined
previously to the Joint Committee on Justice, Equality and Defence, several
hundred amendments to the 2010 Bill are anticipated, the majority of a
technical nature. On that occasion, the Minister also expressed the
considered view that instead of engaging in an extremely cumbersome process
of tabling hundreds of amendments to the 2010 Bill it would be much more
efficient to publish a new and enhanced text. Such an approach can
incorporate the many anticipated amendments while addressing key
outstanding issues, several of which have been of concern to Members,
including that of a streamlined, single application procedure.
This proposition was broadly welcomed by the Joint Committee. Work on the
Bill continues, therefore, on that basis, including in cooperation with the
Offices of Parliamentary Counsel and of the Attorney General while also
taking account of any relevant rulings by the Courts. It remains the
objective of the Minister under this new approach, and mindful of having to
deal with the competing legislative demands of our EU/IMF/ECB Programme
commitments, to be in a position to bring a revised Bill to Government for
approval and publication later this year.
The Minister has some concerns about the extent to which applicants seek to
avail of the judicial review process to stall or prolong their stay in the
State. The construct of the current system provides ample opportunity in
this regard, giving rise as it does to delays in finalising cases and to
significant backlogs of cases to be finalised in the courts. In parallel
with the work on the Immigration, Residence and Protection Bill, the
Department of Justice and Equality is also developing proposals in the area
of judicial review with a view to addressing some of the difficulties in
this area.
Deputies may be aware of the large number of cases that often back up,
sometimes on tenuous grounds, behind legal challenges to aspects of our
protection system. Only last week the Court of Justice of the European
Union delivered its ruling in a case referred to it by the High Court in
April 2011. This referral gave rise to final decisions in approximately
900 asylum cases being delayed. The Court of Justice's ruling supports the
position taken by the State in the cases concerned. While the Court's
ruling is welcome, the costs to the State arising from the inability to
process the cases impacted by the referral are significant. This
reinforces the need to be able to adapt, as far as possible, our processing
arrangements so that processing activity can continue and costs of this
type are minimised.