Title:	Nawaz -v- Minister for Justice, Equality and Law Reform & anor
Neutral Citation:	[2015] IESC 30
Supreme Court Record Number:	87/2011
High Court Record Number:	2009 1019 JR
Date of Delivery:	03/27/2015
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., McKechnie J., Clarke J.
Judgment by:	O'Donnell Donal J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring O'Donnell Donal J. Link McKechnie J., Clarke J.

THE SUPREME COURT

BEWEEN

2 By letter of the 7th of July 2009 (almost 6 years ago) Mr Nawaz (who I will refer to hereafter as “the Applicant”) applied for subsidiary protection. He had not previously applied for refugee status. This is the central and perhaps fixed feature of this case. Mr Nawaz, through his representatives, has always resolutely contended that he should not be obliged to apply for and be refused refugee status before applying for or seeking subsidiary protection.

3 On the 27th of July 2009 the first named respondent (who I will refer to as “the Minister”) refused to consider the application because it did not comply with the Irish regulations which, provided that, in order to be eligible for subsidiary protection, an Applicant must first have been refused refugee status. The letter from the Minister stated:

“the basis for making an application for subsidiary protection is that the person applying has been refused refugee status – see section 3(1)(c) of the subsidiary protection regulations the fact of the matter is that your client has not been formally refused refugee status in that no application respect of him was ever made to the office of the refugee applications Commissioner. The foregoing being the case an application for subsidiary protection cannot be made by your client”.

5 In the event, proceedings were commenced and on the 12th of October 2009 Cooke J. granted leave to seek judicial review by way of certiorari quashing the Minister’s refusal to consider the application. The central ground upon which that relief was sought provided as follows:

“Regulation 3(1) and regulation 4(2) of the European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) are unlawful and ultra vires the provisions of the European Communities Act 1972 (No. 27 of 1972) and Council Directive 2004/83/EC insofar as and to the extent that they provide that the first named respondent is entitled to refuse to consider the application for subsidiary protection of a person who is not a failed asylum seeker.”

7 Both decisions were appealed to this Court. On the 29th of November 2012 this Court reversed the decision of Laffoy J. and held that the constitutional proceedings should be struck out. However, it was indicated that the Applicant should be entitled to amend the judicial review proceedings to include the constitutional challenge, and in due course that was done by consent. In this way the Applicant was enabled to escape from the procedural tangle which his proceedings had created, and avoid the possible consequences of the strict time limit attached to proceedings under s.5, which might otherwise have barred the constitutional challenge. Consequently, the courts would be able to address the issues raised on their merits.

8 In relation to the substantive challenge, this Court considered that it plainly raised an issue of European Union law which required to be referred to the European Court of Justice (hereinafter “ECJ”) pursuant to Article 267 of the Treaty on the Functioning of the European Union. The question posed was as follows:

“Does Council Directive 2004/83/EC interpreted in the light of the principle of good administration in the law of the European Union and in particular as provided for by Article 41 of the Charter of Fundamental Rights of the European Union, permit a member state to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?”

“Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification of status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, the principle of effectiveness and the right to good administration do not preclude a national procedural rule, such as that of issuing the main proceedings, under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the application for refugee status and the application for subsidiary protection at the same time, and, second, the national procedural rule does not give rise to a situation which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court.”

11 On behalf of the applicant, it was argued that the Court should proceed to make an order of certiorari quashing the ministerial refusal of the 27th of July 2009 on the grounds that the burden of the decision of the ECJ was that Irish law was not compliant with European Union law because it did not permit for application for refugee status and application for subsidiary protection to be made at the same time. It was also argued that the result was that Mr Nawaz’s application had been or was likely to be considered only after unreasonable delay and that he was therefore entitled to damages. He contended not only that he was entitled to an order of certiorari of the Minister’s decision of the 27th of July 2009, but also, that certiorari would serve a useful purpose since it would have the consequential effect that his original application would still be extant, and this in turn would mean that a deportation order which had been made in the interim would become invalid. In response to the Minister’s argument that a present application could be made for international protection which, if successful, would mean the deportation order would have to be revoked, the Applicant maintained that this was an unsatisfactory solution because there would have been an extant deportation order which he considered would constitute a form of black mark against him should he wish to travel to other countries. This in turn led to some almost theological debate as to the status of a deportation order in the period between the making of the order and its quashing by a court, on the one hand, or revocation by a Minister on the other.

12 There is no doubt that the bringing of these proceedings and the consequential reference of the question to the ECJ developed the law in a difficult and technical area. Furthermore it is apparent that Irish law as of July 2009 did not make explicit provision for an application for both refugee status and subsidiary protection to be made at the same time and ad hoc procedures have now been introduced to permit this. However, litigation does not exist simply to clarify legal issues. Instead it exists to allow parties to seek and obtain remedies to which they are entitled as a matter of law. Here the Court must consider what order it should make to resolve the proceedings between the parties. It is implicit in the applicant’s approach that he accepts that he cannot obtain the original relief of certiorari of the Minister’s refusal, at least on the grounds upon which it was originally sought. Again, it is implicit in the applicant’s approach that he contends that it is permissible for the Court to make an order of certiorari and quash the ministerial refusal not on the grounds sought, but rather on the apparent flaws in the legal regime as identified in the proviso to the determination of the ECJ at paragraph 57 of its decision.

13 The Minister sought to argue initially that to accede to the applicant’s claim involved an amendment to the grounds upon which he sought judicial review, which was not permissible at this stage of proceedings. This Court does not accept that this is necessarily the correct analysis of what is argued for here. There is little doubt that if in judicial review proceedings a court considered the Applicant was entitled to succeed and obtain the reliefs sought but not precisely in the terms argued, the court could adjust any declaratory order, or indeed the terms of any order of certiorari, to reflect the court’s determination of the true position, and that this would not necessarily require any application to amend the grounds. However, the Court considers that the Applicant faces a number of difficulties with this argument. Even assuming for the moment that it could be said that the legal regime in 2009 was in some way defective in not making provision for an application for both refugee status and subsidiary protection at the same time, the fact remains that the Applicant never made such an argument in the High Court or indeed in this Court insomuch as the matter was ventilated here. Further, and perhaps more fundamentally, the Applicant could not have made such an argument because factually he was not in a position to do so. Neither he nor his representatives had sought to make a simultaneous application for refugee status and subsidiary protection. To have made such an application would have involved applying (even simultaneously) for refugee status, and the clearest point of the Applicant’s argument was that he contended he should not be obliged to apply for that status. The Applicant’s objection was not one of timing but rather to being required to make any application for refugee status at all. Finally, it should be said that the assumption which the Applicant makes in advancing this latest argument does not appear to be necessarily correct. It is not at all apparent that the legal regime in 2009 would not have permitted some form of ad hoc simultaneous application if that was what an applicant truly sought. But that argument would in any event require detailed analysis of the procedures available both as a matter of law and fact in 2009. The very fact that those procedures were not the subject of any scrutiny in the course of these proceedings, and that accordingly it is not possible to say definitively whether or not Irish law precluded a simultaneous application, only illustrates the fundamental fact that the matters now relied on were not properly part of the proceedings or the determination of the High Court which is the subject matter of this appeal.

14 The question for this Court is the order which it should make on the appeal in these judicial review proceedings. The law has been clarified by the decision of the ECJ, but it is not the object of judicial review proceedings merely to clarify the law or to repeat the clarification provided by the decision of the ECJ. Instead the question for this Court is whether the applicant is entitled to the relief sought, an order of certiorari of the ministerial refusal to consider his application, on the grounds asserted, or perhaps whether he is entitled to any relief which can be said to be fairly encompassed in these proceedings. For the reasons set out above, it seems clear that the Applicant cannot claim to be entitled to an order of certiorari in respect of the Minister’s refusal to consider his standalone application for subsidiary protection. That refusal was perfectly lawful. The proviso to the opinion of the ECJ also referred to a requirement that any procedure should not give rise to undue delay. Again the Applicant seeks to rely on this and contends that there has been unnecessary delay in the processing of his application for international protection, and now seeks damages on account of such delay. Again however, it appears that this application is misconceived. Since the Applicant here refused to make an application for refugee status he cannot contend that the procedure adopted in Irish law for separate and consequential determination of refugee status and subsidiary protection has given rise to undue delay in this case. Such delay as has occurred is due entirely to the judicial review proceedings initiated by the Applicant on the basis of the legal issue determined by the ruling of the ECJ. The lapse of time consequent on judicial review proceedings, particularly those which involve an appeal and reference to the ECJ, is something which is often welcomed by applicants since it almost inevitably strengthens the humanitarian aspect of their application to remain in the State however that claim is formulated in law. It would indeed be bordering on perverse to award damages to the Applicant for a delay caused by proceedings which he commenced and which failed and in circumstances where that delay may well have been regarded as a beneficial consequence of those proceedings, from the applicant’s point of view. In any event it is clear that any lapse of time cannot be attributed to the operation of the system requiring that subsidiary protection should be considered after the determination of refugee status, for the obvious reason that the Applicant never participated in that system. He made his objection at the very outset, raising a point of law giving rise to these proceedings, which, in the light of the ruling of the ECJ, must now be determined against him. Accordingly, the Court is satisfied that the only appropriate order to make in this Court is one dismissing the applicant’s appeal. The Court will hear the parties on the question of costs.