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.
6 February, 2013