Ireland: Supreme Court rules that there is no right to enter the State for the purposes of making an application, save where the person is at its frontiers

Tuesday, October 13, 2020

On 13 October 2020, the Supreme Court of Ireland handed down a judgment concerning the question whether the Minister for Justice and Equality is obliged to revoke a deportation order or otherwise facilitate a person to enter the State, when that person has been granted consent to make a subsequent application for international protection under section 22 of the International Protection Act 2015, which requires the person’s presence in the State to make the application. 

The case concerns a Ukrainian national, Ivan Seredych, who made an unsuccessful application for refugee status in Ireland. He received permission to remain, which was renewed until 2016.  In February 2018, a deportation order was issued. A challenge to the deportation order was rejected by the High Court in March 2018 and Seredych subsequently left Ireland in April 2018, complying with the deportation order. 
Before leaving the State, his legal representatives sought to have Seredych readmitted to the International Protection process. After an initial recommendation to refuse readmittance issued by the International Protection Office to the Minister, the International Protection Appeals Tribunal (IPAT) set aside this recommendation and the Minister was required, as a matter of statute, to provide his consent for the making of a subsequent application for international protection. 
The High Court quashed the Minister’s decision to refuse the revocation of the deportation. The Minister subsequently appealed to the Supreme Court.  

The Supreme Court stated that the High Court had wrongly observed the process as a unitary one. The Minister was treated “as interrupting a process in a manner that was inconsistent” with the Minister’s role as envisaged by section 22 of the International Protection Act.

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. Relying on its own previous jurisprudence, the Supreme Court pointed to the judgment in PNS v The Minister for Justice and Equality where it was held the right to remain did not extend to situations where an application is being appealed to the IPAT “if a person does not have a right to remain pending the outcome of an appeal, still less could such a person have a right to return to the State to do so.” In that regard, the Supreme Court held that there is no express right to enter the State for the purposes of making an application, except in circumstances where the person is at its frontiers.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Effective access to procedures