Derek Nolan (Galway West, Labour) | Oireachtas source

I find that rather frustrating, to say the least. The issue I raise is the decision of Mr. Justice Hogan in the High Court on 23 January last and its implications for those who are navigating the immigration, asylum and refugee process in this State. The judgment affected the law on subsidiary protection.

As the Minister of State is aware, an applicant seeking leave to remain in the State who has failed the asylum process, in other words, he or she has had an application rejected by the Refugee Appeals Tribunal, is entitled to apply for subsidiary protection. To qualify for subsidiary protection the applicant must show substantial grounds for believing that he or she would face a real risk of suffering serious harm if returned to his or her country of origin. The High Court found, two weeks ago today, that the current model used in Ireland whereby we assess the asylum application first and subsidiary protection application thereafter, known as the bifurcated or split system, is not being operated properly. In the case before the High Court, Mr. Justice Hogan criticised a decision to reject an application for subsidiary protection on the grounds of adverse credibility findings in the asylum application stage. In other words, the grounds for failing the first hurdle were considered grounds for failing the second hurdle. The State, through the office of the Minister, was found to have failed to afford the applicant an effective hearing, contrary to the principles of due process.

Mr. Justice Hogan stated that an effective hearing for subsidiary protection must would involve the applicant being invited to comment on any adverse credibility findings made by the Refugee Appeals Tribunal and being given a fresh opportunity to revisit all matters bearing on the claim for subsidiary protection. It would also involve a completely fresh assessment of the applicant's credibility in circumstances where the mere fact was that the tribunal had ruled adversely to this.

Like me, the Minister of State operates constituency clinics and will be visited weekly by people seeking to discuss the immigration and asylum process. Many of them have been in the system for years. In one case of which I have been made aware, a family received notice in the past week that decisions regarding subsidiary protection have been withdrawn without reasons being given.

Is this decision the reason for that withdrawal?

I wish to ask a number of questions. What are the consequences for those who have been refused subsidiary protection? The High Court has stated that the current procedure in certain circumstances is wrong and does not constitute a fair hearing. Many people in the State who have failed in their subsidiary applications may have been judged incorrectly. Are we going to audit those decisions to ensure they were reached correctly? What will happen to people who are currently in the process? Are we examining it to ensure that applications are being made to a proper system?

Mr. Justice Hogan acknowledged that his decision was likely to have significant, perhaps far-reaching consequences for the practical administration of the subsidiary protection scheme in terms of complications, delays and costs. Does the Department have the capacity to deal with these demands? Given the unseemly, unhealthy and despairing effects of the time spent in direct provision centres, of which there is much criticism, by those who have reached the subsidiary protection phase, does the Minister of State believe that the decision will further exacerbate this delay? When will the legislation for a new combined application process be tabled before the House? It has been drafted and is almost ready for publication.

I thank the Minister of State, Deputy O'Dowd, for taking this debate. I appreciate that he is not in the Department in question and may not be able to provide me with the full answers that I require.

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