Under Council Directive 2004/83/EC (minimum standards for qualification for international protection) a rule that precludes an application for subsidiary protection before an application for asylum has been refused does not breach the principle of effectiveness or the right to good administration, once it is possible to apply for both at the same time and the application for subsidiary protection will not be delayed unreasonably (judgment).
Background
In Ireland, applications for refugee status are decided by the Refugee Applications Commissioner, and applications for subsidiary protection are decided by the Minister for Justice. In July 2009, Nawaz applied to the Minister for subsidiary protection without first applying for asylum. The Minister, referencing s 3(1)(c) of the European Communities (Eligibility for Protection) Regulations 2006, refused to consider that application as Nawaz had not first made an unsuccessful application to the Commissioner. In October 2009, the High Court granted Nawaz leave to seek judicial review of the Minister’s decision and to challenge the Regulation as ultra vires Council Directive 2004/83/EC. He argued that he should not be required to make a futile application for asylum. In December 2010, the High Court dismissed that action holding that the precondition was permissible given the definition of subsidiary protection. Nawaz appealed that decision to the Supreme Court.
Supreme Court
In November 2012, the Court referred a question to the ECJ:
Does Council Directive 2004/83/EC interpreted in the light of the principle of good administration in the law of the European Union and in particular as provided for by Article 41 of the Charter of Fundamental Rights of the European Union, permit a member state to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?
In May 2014 the ECJ issued its decision:
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification of 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, the principle of effectiveness and the right to good administration do not preclude a national procedural rule, such as that of issuing the main proceedings, under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the application for refugee status and the application for subsidiary protection at the same time, and, second, the national procedural rule does not give rise to a situation which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court.
As Nawaz’s position was that he should not be required to make a futile application for refugee status, and as he had not made an application to the Commissioner, he did not–and could not–argue that is was not possible to make simultaneous applications in 2009. Therefore, he had not established that the Regulation was not in compliance with the requirements of the Directive as set out by the ECJ. The Court dismissed the appeal.
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