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Topical Issue Debate - The need to examine the consequences of the judgment of the High Court (23/1/13) for those seeking refuge in Ireland under the Subsidiary Protection procedure, insofar as it may affect thousands of individual claims. Statement by Minister of State Fergus O'Dowd T.D.

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.