Ireland - Ivan Seredych v The Minister for Justice and Equality [2019], Supreme Court, S:AP:IE:2019:000228

It was argued that the Minister cannot lawfully act in a manner that has the practical effect of obstructing the exercise of the right to make the subsequent application, the making of which has been sanctioned by the Minister himself. Therefore, the court was occupied with establishing the questions of law concerning the interpretation of the powers contained in s.3(11) of the 1999 Immigration Act.

At first, the court stated that it is fundamental that a person may seek international protection only when he or she is at the frontier of, or in, the State, subject to s.15 of the 2015 Act. The respondent is not within the territory of the State nor has he presented at its frontiers seeking protection, and he is accordingly not a refugee in the sense in which that term is used in international treaties or in domestic law, and therefore, he is not entitled to seek international protection unless steps are taken to either revoke the deportation order or otherwise permit him to enter.

When tackling the issue of making a subsequent application, it is clearly stated that a person who has been refused international protection may not make a further application without the consent of the Minister. Section 22 contains a general prohibition against the making of the subsequent application but modifies that by permitting the making of a subsequent application with the consent of the Minister.

PNS v The Minister for Justice & Equality [2020] IESC 11 was relied on as support for treating the application for leave to re-enter the protection process as a separate step.

The judge said that the trial judge had wrongly regarded the process as a unitary and not sequential process. He had treated the Minister “as interrupting a process in a way that was inconsistent with the Minister’s own statutory role in that process.” The court was unable to read s.22 in that way.

The Supreme Court adopted the analysis of the Court of Appeal for England and Wales in R on the Application of AB) v the Secretary of State for the Home Department [2018] EWCA Civ 383, which indicated that there is nothing in the Procedures Directive (Directive 2013/32/EU) which obliges Member States to readmit, to its territory, an applicant who has previously chosen to leave while his or her application is still pending.

While observing the protections in the Procedures Directive on the making of a second or subsequent application by a person who has been refused protection or whose application was withdrawn, the judge said that if “a person cannot, by reason, for example, of not being present in the State, be regarded for the purpose of the Directive as a refugee or applicant for protection those guarantees do not operate.”

The court emphasised that there is no express right to enter the State for the purposes of making an application, unless where the person is at its frontiers. It was also noted that the PNS case made clear that the right to remain is limited and does not extend to a right to remain pending an appeal to IPAT.