Supreme Court clarifies procedures in Subsidiary Protection applications in Ireland
The Supreme Court has just delivered a detailed judgment on a group of related cases which raised similar points on how legal procedures should apply to applications for Subsidiary Protection.
In L -V- Minister for Justice & Equality & anor and M -v- Minister for Justice Equality & anor and J -v- Minister for Justice Equality & anor  IESC 75 O'Donnell J delivered the judgment of the Court.
The cases have a very complex procedural history and raise a number of points about the regime for decisions on applications for subsidiary protection which applied in Ireland between 2006 and 2013, and which has given rise to much litigation and criticism both in the Irish courts and in the Court of Justice of the European Union (“CJEU”). During that period, Ireland operated what has been described accurately as bifurcated system. That meant that, notwithstanding the obvious similarities between the criteria for a grant of asylum and those for subsidiary protection, applicants for asylum were first dealt with under a statutory scheme which established the Office of the Refugee Applications Commissioner (“ORAC”), and an appeal to the Refugee Appeals Tribunal (“RAT”) resulting in a formal decision of the minister to grant or refuse asylum.
The enmeshment point
Following Nawaz v. Minister for Justice IESC 58,  1 I.R. 142, which in turn following the reference to the CJEU in H.N. v. Minister for Justice, Equality and Law Reform (C-604/12)  1 W.L.R. 3371 it was observed there that since refugee status provides greater protection for the individual than subsidiary protection, and since an applicant will not necessarily be in the best position to identify the form of international protection to which he or she may be entitled, it was in principle permissible for competent authorities to determine the status most appropriate to the applicants’ situation.
The absence of an appeal mechanism
The applicants argue that judicial review was the only means of challenging the refusal of their applications for subsidiary protection, and is not an effective remedy for the purposes of Article 47 CFREU.
The question of whether judicial review in Ireland can be said to be an effective remedy for the purposes of the ECHR or the CFREU is one which has been widely considered in Irish courts, and on which at the moment the law is clear, as illustrated most recently by the decision in A.A.A. v. Minister for Justice  IESC 80, (Unreported, Supreme Court, 21 December 2017). As has been noted, the process of judicial review as applied in Ireland generally, and perhaps specifically in the field of international protection, is both a flexible and powerful remedy. Decisions may be reviewed for legality, procedural error, irrationality, proportionality, and compliance with and protection of rights under the Constitution and the ECHR, rights under European Union law, and the rights protected by the Charter. It is a necessary feature of any system of judicial review that the court is not empowered to rehear issues and substitute its own findings of fact for those of the deciding body. Furthermore, that limitation is intrinsic to any concept of judicial review, and has the corresponding feature that in some cases review may be more extensive, since a decision may be quashed for an error which was capable of being corrected on a merits appeal.
According to the Court 'the law in this regard in Ireland must be regarded as settled'
Practice of writing to the Court after the hearing has finished with jugment reserved and refusal to admit fresh evidence
O'Donnell J took the opportunity to inform litigants about the practice of writing to the Court and parties following a reserved judgment.
When new information was sought to be introduced as part of a de novo appeal to invite the court to decide that the Minister was wrong on the merits, or indeed that subsidiary protection should now be granted to the applicants , it was plainly outside the judicial review process and was correctly excluded.
'The process culminating in that hearing is not intended to be merely the opening act in a long-running drama: as has been observed, like any trial, the hearing is the opening and closing night of the show. Every litigant experiences what is sometimes called l’esprit d’escalier: the thought that there is something more that could have been said, or said better or differently, or some materials to which reference might usefully have been made.'
It is undesirable that further issues and arguments as to substance should be raised in correspondence, particularly in a case such as this which has seen a considerable proliferation of issues during its extensive lifetime.
This is a very important decision of the Supreme Court proving finality to some of the systemic challenges derived from EU law in subsidiary protection applications in Ireland. it will provide very useful guidance for future cases and in general judicial review principles as they apply to immigration cases.