David Stanton (Cork East, Fine Gael)
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Question 800: To ask the Minister for Justice, Equality and Law Reform if he will make a decision on a person (details supplied) in County Cork to enable them to remain here; and if he will make a statement on the matter. [26741/08]

Dermot Ahern (Louth, Fianna Fail)
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The person concerned arrived in the State on 31 January 2005 and applied for asylum. His application was refused following consideration of his case by the Office of the Refugee Applications Commissioner and, on appeal, the Refugee Appeals Tribunal.

Subsequently, in accordance with Section 3 of the Immigration Act 1999 (as amended), the person concerned was informed, by letter dated 21 November 2006, that the Minister proposed to make a deportation order in respect of him. He was given the options, to be exercised within 15 working days, of leaving the State voluntarily, of consenting to the making of a deportation order or of making representations to the Minister setting out the reasons why he should be allowed to remain temporarily in the State. In addition, he was notified of his entitlement to apply for Subsidiary Protection in the State in accordance with the European Communities (Eligibility for Protection) Regulations, 2006 (S.I. No. 518 of 2006).

The person concerned submitted representations in support of his application for leave to remain in the State and also submitted an application for Subsidiary Protection in the State. The Subsidiary Protection application is under consideration at present. When consideration of this application has been completed, the person concerned will be notified in writing of the outcome.

The person concerned submitted a separate application for residency in the State on the basis of being the spouse of an EU National who was seeking to exercise her EU Treaty Rights. This application was refused because the person concerned had not been lawfully resident in another Member State prior to entering this State.

The person concerned initiated Judicial Review Proceedings challenging this decision. The case was settled and, as part of the agreed Terms of Settlement, my Department agreed to re-consider the EU Treaty Rights application. However, subsequent to this settlement, the Metock and Others case arose which was referred to the European Court of Justice (ECJ Ref. No. C-127/08). The Metock and Others case deals with the issue of whether or not a Member State of the EU can introduce a general requirement that restricts the scope of a directive. This case was heard in early June and my Department is currently awaiting the outcome of this case. The case of the person concerned is similar in nature to the Metock and Others case. In light of this situation, my Department is not currently in a position to make a decision on the re-consideration of the application for residence under EU Treaty Rights on behalf of the person concerned.

Regarding the other outstanding applications of the person concerned the position is that in the event that the Subsidiary Protection application of the person concerned is refused, my Department will examine the position in the State of the person concerned based on the provisions of Section 3(6) of the Immigration Act, 1999 (as amended) and Section 5 of the Refugee Act, 1996 (as amended) on the prohibition of refoulement.