European Court judgment shows need for urgent legislative reform

Posted On: 12 May 2014

IRC LogoMEDIA RELEASE, 12 May 2014

The Irish Refugee Council welcomes the decision of the Court of Justice of the European Union (CJEU) of 8th May 2014 in Case C-604/12 H.N which clarifies that a person applying for international protection must be able to submit an application for refugee status and subsidiary protection at the same time and that there should be no unreasonable delay in processing a subsidiary protection application.  The CJEU judgment followed a referral from the Irish Supreme Court of a case in which a man was refused permission to apply for subsidiary protection because he had not first applied for refugee status.

The CJEU decision provides a clear mandate for reform of the existing procedure in Ireland in which applicants for international protection have had to wait, in some cases, a number of years before being invited to apply for subsidiary protection by the Minister for Justice.

Jacqueline Kelly, Managing Solicitor of the IRC’s Law Centre, said, “Following last year’s decision of the Court of Justice in the case known as ‘MM’, responsibility for processing subsidiary protection applications at first instance has transferred to the Refugee Applications Commissioner (ORAC).   Currently, however, it is still the case that applicants must conclude the entirety of their refugee application and appeal prior to lodging an application for subsidiary protection.

Ms. Kelly continued, “It is hoped that having already transferred responsibility for processing subsidiary protection applications to ORAC, existing procedures can be easily adapted to enable new applicants to apply for refugee status and subsidiary protection at the same time. This will enable the Minister to give effect to Court of Justice decision in H.N. without undue cost, complexity or delay to applicants.  It will also bring Irish practice into line with that of other EU states.”

Ms. Kelly went on to say, “It is, however, essential that new procedures are accompanied by the frontloading of legal aid for applicants, in particular to ensure that all applicants for asylum have access to full early legal representation.  Since early 2012, the IRC Law Centre’s Early Legal Advice and Representation Initiative has been providing comprehensive advice and representation within its capacity with significant success.  With increased resources, the Legal Aid Board, which represents the vast majority of applicants, could offer a similar service, which would increase access to justice for applicants and reduce the need for recourse to litigation.”

The Irish Refugee Council has called for the introduction of a single procedure for many years.  Regrettably, the failure to introduce such a procedure has led to unacceptable delays for individuals accessing their right to subsidiary protection in violation of the principle of good administration and at enormous cost both to the state and to the individuals concerned.



Caroline Reid, Communications Officer / 085 8585510


Jacqueline Kelly, Managing Solicitor of the IRC’s Law Centre, is available for interview

The full judgment of Case C-604/12 H.N. can be found here

The CJEU Case C-277/11 M.M which led to a new Subsidiary Protection procedure can be found here

Ireland is the only EU country which has a split procedure for the consideration of refugee and subsidiary protection claims.  A single procedure has been part of proposed legislation for more than four years but there is still no date for the Immigration, Residence and Protection Bill to be brought before the Oireachtas.