Yesterday saw the Supreme Court judgment in Izevbekhai v. Minister for Justice, Equality and Law Reform (judgment here). We summarised the background to this case last year here. Miss Izevbekhai claims that her daughters are at risk of female genital mutilation if they are returned to Nigeria. As the Irish Times neatly summarises:

In a majority four-to-one decision, the Supreme Court rejected her claims the Minister for Justice has discretion, by virtue of regulations enacted here in 2006 after the family’s deportation was ordered, to reconsider her application to stay here.

It was argued the family’s application for protection should be considered under the European Communities (Eligibility for Protection) Regulations 2006 but the Supreme Court found the Minister had no discretion to do so as the deportation order was made prior to the regulations being enacted.

The regulations did not confer on the Minister a discretion to reopen deportation orders made prior to the bringing in of those regulations nor was he obliged to do so in limited cases where he accepted new facts or altered circumstances, the majority court said.

[T]he preliminary issue arose out of a High Court judgment last year, in a separate case, over whether a person was entitled to protection against deportation following the coming into operation of the 2006 Regulations…In that case, Mr Justice Kevin Feeney found the Minister for Justice has discretion in certain circumstances to allow an application for subsidiary protection even where a deportation order (as in Ms Izevbekhai’s case) was signed before October 2006. If a person already refused protection or leave to remain could identify new facts or circumstances about their case, the Minister had discretion whether or not he considered the case again, Mr Justice Feeney ruled.Mr Justice Fennelly said, having considered the regulations and case law, he had concluded Mr Justice Feeney erred in his interpretation of the relevant regulation, Regulation 4(2), which states the Minister shall not be obliged to consider an application for subsidiary protection where an application for asylum has been refused.

That was a negative proposition and specified what the Minister is not obliged to do but contained no words to confer any positive power or discretion on the Minister, Mr Justice Fennelly said.

The judge also said Ms Izevbekhai had not pointed to any provisions of the EU directive, providing for the bringing in of the subsidiary protection regulations, which required member states to adopt a provision that the Minister has discretion to re-consider deportation in circumstances of new evidence.

The directive conferred a right “from” October 2006 for consideration of subsidiary protection on a defined category of persons but says nothing about those who have received consideration prior to that date, Mr Justice Fennelly said.

In her dissenting judgment, Ms Justice Susan Denham said she was satisfied the Minister has a discretion, but not an obligation, to consider an application for subsidiary protection under regulation 4(2).

Miss Izevbekhai’s solicitor has indicated his intention to take the case to the European Court of Human Rights.

The issue of female genital mutilation is set to remain on the agenda with the second reading of the Female Genital Mutilation Bill later this year (see our earlier discussion here). The Irish Times carried this interesting story on FGM in Ireland on July 6.