Immediate changes to the protection process necessary after High Court decision says Irish Refugee Council

Posted On: 29 January 2013

The Irish Refugee Council says that a recent decision of the High Court means that it is no longer feasible to continue with a split procedure for making asylum claims.  Ireland is the only EU country which requires protection applicants to apply for and be refused asylum before they can claim protection against a risk of serious harm, known as Subsidiary Protection.

Sue Conlan, CEO of the Irish Refugee Council, says: “For over ten years we have been promised new asylum and immigration legislation that will introduce a single procedure and significantly reduce delays.  The recent decision of the High Court means that the Oireachtas should not wait any longer to introduce a single procedure.”

The High Court decision of 23 January revealed that the manner in which Subsidiary Protection applications are decided may be in contravention of a fundamental principle of EU law, the right to be heard. This broad principle, which is also contained in the Charter of Fundamental Rights of the European Union, includes the right to fair legal process in all judicial proceedings.  This is absent in the Irish system because Subsidiary Protection applications have been treated as part of the asylum process and applicants have therefore been denied the opportunity of a fair hearing if refused Subsidiary Protection.

“The split procedure creates an additional layer of decision-making with all the associated costs and delays.  As recently as October 2012, the Supreme Court noted that the multiple challenges that come about in a split process places a burden on the court’s time, as well as lengthening the amount of time that an asylum seeker requires accommodation and support.

“This adds up to an unnecessary financial cost to the taxpayer and a huge cost to applicants,” adds Sue Conlan.





Further information:


Sharon Waters                  085 8585 510 /



  •  In M.M. v Minister for Justice and Law Reform (High Court, 23 January 2013), Mr Justice Gerard Hogan found that an applicant for Subsidiary Protection must be granted an effective hearing and this would not be accomplished where the Minister relied solely on the negative findings made during the failed application for asylum.  The judgment was handed down following a reference to the European Court of Justice.  A full copy of the judgment is available, please contact
  • Mr Justice Clarke in the Supreme Court discussed the problems associated with the split procedure in Okunade v Minister for Justice on 16th of October 2012.
  • Subsidiary Protection is granted where a person who does not qualify as a refugee can show substantial grounds for believing that he/she would face a real risk of suffering serious harm if returned to his/her country of origin. The rules surrounding Subsidiary Protection are governed by an EU Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and 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: )

  • Legislation to reform the protection and immigration systems has been brought forward on three occasions over the last decade.  The most recent version, the Immigration, Residence and Protection Bill 2010, was at committee stage when the previous Dáil fell.
  • The United Nation High Commissioner on Refugees submission to the Universal Periodic Review in 2011 stated that of the 40 grants of subsidiary protection made between 2006 and 2010 applicants waited on average four years from their original application for protection and a significant number waited for 5 years or more.