A 50-year-old Ghanaian woman who claims she is at at risk at being forced into servitude at a local pagan shrine if sent home is to have her case seeking protection here referred to the EU Court of Justice.
She claims she will be pledged by family members to be a “Trokosis” whereby she goes into indentured service at a shrine to atone for past deeds of the family. This involves having to maintain the shrine where, it is claimed, victims fall prey to sexual predation at the hands of fetish priests and tribal chiefs.
A refugee application tribunal refused her application for refugee status in 2011 on credibility grounds saying she did not match the profile of those subjected to the Trokosi practice – they are usually female teenagers.
She then applied for what is called “subsidiary protection” whereby a person who does not fit the strict definition of a refugee applies for protection on the basis they would be at risk of serious harm if returned to their home country.
The Minister for Justice refused to entertain the application because she had not made it within a 15-day time limit.
She challenged that decision in the High Court which rejected her application last October and she then took her case to the Court of Appeal.
It was argued on her behalf there was no time limit specified by law for refugee applications and the 15-day limit had been imposed administratively, rather than by law, for subsidiary protection. There should be equivalent remedies for both applications, it was argued.
The Minister for Justice, Equality and Law Reform disputed the claims.
Mr Justice Gerard Hogan, on behalf of the three-judge Court of Appeal, adjourned her case pending a reference to the Court of Justice of the EU (the CJEU).
He said he wanted the CJEU to answer a question as to whether an application for asylum, which is governed by domestic law in accordance with an EU directive, can be regarded as the appropriate comparator for a subsidiary protection application for the purpose of equivalence between both applications.
If the answer to that question is yes, he wants the CJEU to decide if it is relevant that the 15-day time limit has been imposed by the Department simply administratively and whether the time limit serves “important interests” of ensuring applications for international protection are dealt with in a reasonable time.
The judge said he will hear submissions from both sides next month on these draft questions as, he added, they were “not set in stone”.