Pat Rabbitte (Dublin South West, Labour)
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Question 288: To ask the Minister for Justice, Equality and Law Reform if he will review the decision to deport persons (details supplied); and if he will make a statement on the matter. [45248/08]

Dermot Ahern (Louth, Fianna Fail)
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The persons concerned arrived in the State on 20 January, 2005 and sought asylum. Their applications for refugee status were refused in the first instance by the Refugee Applications Commissioner, and on appeal by the Refugee Appeals Tribunal. Deportation orders were signed in respect of each applicant on 23 November, 2005.

Judicial review proceedings were instituted on 13 January, 2006 challenging the decision to make the deportation orders. The proceedings were determined on 30 January, 2008 when all reliefs sought were refused by the High Court. A certificate to appeal the decision to the Supreme Court was sought but this was refused by the High Court on 13 March, 2008.

The applicants submitted applications for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations, 2006 S.I. No. 518 of 2006 ("the Regulations") on 3 March, 2008. These applicants, as persons in respect of whom deportation orders were signed before the coming into force of the Regulations on 10 October, 2006, are not automatically entitled to apply for subsidiary protection. In such cases, I may exercise discretion pursuant to Regulation 4(2) of the European Communities (Eligibility for Protection) Regulations, 2006 S.I. No. 518 to accept and consider an application for subsidiary protection where an individual has identified new facts or circumstances which demonstrate a change of position from that which pertained at the time the deportation order was made.

The persons in question were informed on 19 March, 2008 that my predecessor had decided to refuse to exercise his discretion pursuant to Regulation 4(2) of the European Communities (Eligibility for Protection) Regulations 2006, S.I. No. 518 of 2006 as no new or altered circumstances had been demonstrated. Judicial review proceedings were instituted on 20 March, 2008 challenging this decision.

In a similar case, Gavryluk, the High Court has determined that I retain the discretion to accept and consider an application for subsidiary protection in situations where an applicant can demonstrate a change of circumstances from the time the deportation order was made. This is in line with the decision that was reached in respect of the applications made by these individuals The decision in Gavryluk is now under appeal, by the applicant, to the Supreme Court.

On 18 November, 2008 the High Court refused an application on behalf of the applicants for an injunction restraining their deportation pending the hearing of the substantive application for judicial review of the decision to refuse to exercise discretion to consider the applications for subsidiary protection.

A case was lodged by the applicants' solicitor to the European Court of Human Rights on 11 September, 2008 under Article 34 seeking a declaration that the decision to deport the applicants represents a violation of their rights under Articles 3, 6, 13 and 14 of the European Convention on Human Rights.

My Department was informed on 18 November, 2008 that the President of the Third Chamber of The European Court of Human Rights had indicated that as an interim measure under Rule 39 of the Rules of the Court, the applicants should not be deported before midnight (Irish time) on 10 December, 2008, in order to give the Third Section of the Court the opportunity to consider the applicants' case at its meeting on 9 December 2008. The European Court was informed on 19 November, 2008 that the persons concerned would not be deported while the Rule 39 interim measure remains in place.

The facts of this case have been aired in court on numerous occasions over almost three years and on each occasion the courts have firmly endorsed the validity of the deportation orders made in respect of the applicants. In his decision on 30 January 2008, Feeney J. noted that: "The applicants' applications for asylum were rejected on the basis that the Tribunal found that on the present evidence that there was no substantiation of the alleged risk to the applicant or of her children when considered objectively. The history was not disbelieved but rather, on a forward looking test, it was deemed that it had not been demonstrated that there was a reasonable degree of likelihood of a well founded fear of persecution in the future." The Court was also satisfied that an examination of additional evidence which the applicants sought to put forward did "not in fact materially alter the factual matrix" in the case.

The substantive application for judicial review of the decision to refuse to exercise discretion to consider the applications for subsidiary protection is due to be heard by the High Court on 16 and 17 December, 2008.

My Department was informed on 5 December, 2008 that the applicant has served a Notice of Appeal to the Supreme Court on the judgement of Hedigan J. issued on 18 November, 2008. Accordingly, as the matter is now sub judice, I cannot comment further on the case.