THE HIGH Court has rejected a challenge by six failed Nigerian asylum seekers to the Minister for Justice's refusal to grant them what are called "subsidiary protection" orders allowing them remain in the State.
In response to what is regarded as a test case, Mr Justice Peter Charleton yesterday ruled that the State was allowed under European law to choose the procedure involved in considering the applications for subsidiary protection and he found that procedure had been operated fairly by the Minister.
However, in spite of being disappointed with some parts of the ruling, the Irish Refugee Council (IRC) described the judgment as "very significant" in terms of the procedures followed when applications are made for refugee status.
Siobhán Mullally, chairwoman of the IRC, welcomed the fact that the judgment recognised the right to protection, and that it highlighted the duty on the Minister for Justice to carefully consider an applicant's entitlement to subsidiary protection.
Subsidiary protection is provided to failed asylum seekers if their deportation would result in a "serious and concrete threat" to the person's life, or other inhuman or degrading treatment, and if their deportation would violate the European Convention on Human Rights.
Mr Justice Charleton said the primary focus for subsidiary protection applications are "allegations made in relation to what may happen to applicants if returned to their country of origin."
In defining a right to be protected against serious harm, the European and Irish legislation focus on attacks or threats by human agency, he said. This definition included allegations that someone in their country will execute them, subject them to torture, degrading treatment or being put in danger due to war, but excluded the state of health of an applicant.
The concept of subsidiary protection does not apply to individual circumstances "concerned with the commission of crime, such as trafficking or prostitution or genital mutilation", unless a state of affairs exists in the country of origin that protection is not available to them.
The applicants, who cannot be identified, had sought protection on grounds including that they feared for their lives if returned to Nigeria and that one of their daughters would be subjected to female genital mutilation there.
They all applied for subsidiary protection after their applications for asylum were refused by the Refugee Applications Commissioner and the Refugee Appeals Tribunal but the Minister refused their applications for subsidiary protection.
The group, none of whom had any passports or identification, claimed that the Minister's refusal was made by a procedure that was in breach of their rights. The State rejected their claims.
One of the applicants, who had applied for subsidiary protection with her son and daughter, claimed that she fled Nigeria, leaving behind other daughters, after her family wanted to make her the head of an occult shrine.
The woman claimed that she had been beaten as a result of her refusal to take part in activities including animal sacrifice, mixing of blood to drink, and that if she returned she would be killed.