Ireland - High Court, 25 January 2011, T.D., N.D. and A.D. v Minister for Justice 2011 IEHC 37
| Country of Decision: | Ireland |
| Country of applicant: | South Africa |
| Court name: | High Court (Hogan J.) |
| Date of decision: | 25-01-2011 |
| Citation: | 2011 IEHC 37 |
| Additional citation: | 2010 No.405 J.R. |
Keywords:
| Keywords |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
Headnote:
This case involved a challenge to the transposition of the Procedures Directive into Irish domestic law which appeared to be barred by a special time limitation period of 14 days applicable to challenges to asylum/deportation decisions. The Court found that a Member State is entitled to apply a national limitation period even in respect of those cases where the Member State in question has failed properly to transpose the relevant Directive, provided that the limitation period complies with the principles of equivalence and effectiveness. The Court found that the strict 14 day time limit provided for in section 5 of the Illegal Immigrants Trafficking Act, 2000, is not equivalent to the limitation period for judicial reviews in other broadly similar areas (generally 6 months) and is not effective because it is so short a time. In the circumstances, the limitation period could not be pleaded or relied upon against the applicants.
Facts:
The applicants in this case were a mother and two children from South Africa who came to Ireland in April of 2009 and claimed asylum. The Refugee Applications Commissioner recommended that they not be declared refugees in May of 2009. This recommendation was affirmed on appeal by the Refugee Appeals Tribunal in July of 2009. The Minister for Justice then formally refused the refugee status application in August of 2009. An application for subsidiary protection was then made but this was unsuccessful. Deportation orders were made against all 3 applicants in March of 2010. The applicants challenged the making of these deportation orders by way of judicial review but they also challenged the earlier (refugee) decisions of the Commissioner and Tribunal. The applicants claimed that the procedures provided for by the Refugee Act 1996 were incompatible with Art 23 and 39 of the Asylum Procedures Directive 2005/85/EC and that they were deprived of an effective remedy against the refugee decisions at first instance (see D v. Refugee Applications Commissioner and Others [2011] IEHC 33).
The application for judicial review in respect of the refugee decisions was issued months outside the special 14 day time limit for such applications prescribed by section 5 of the Illegal Immigrants (Trafficking) Act 2000. Even the challenge to the deportation order was issued two days out of time. At the hearing of the application for leave for judicial review, the Minister asserted that the applicants should not be granted leave because the proceedings were issued out of time. They were, in effect, statute barred. The applicants argued that the claim was based upon the Procedures Directive and that they could only be barred from asserting EU rights if the special time limits in relation to challenges to asylum/deportation decisions, set down by section 5 of the illegal Immigrants Trafficking Act, 2000 complied with the principles of equivalence and effectiveness as required by EU law.
Decision & reasoning:
The Court (Hogan J.) found that the principle of equivalence demanded that the time limits in question be comparable to those applied in other broadly similar judicial review actions. The Court compared the special 14 day time limit for asylum/deportation cases with the general 3/6 month time limit for judicial reviews provided for under Order 84 of the Irish Rules of the Superior Courts and with other special limitation periods such as the one which applies in relation to planning decisions (8 weeks). The Court concluded that section 5 did not comply with the principle of equivalence.
The Court also held the 14 day time limit could make it excessively difficult for applicants to exercise their procedural rights (following ECJ decisions in cases such as Pontin Case C-63/08 [2009] ECR I -000) and that although the High Court could extend the time for the bringing of an application under section 5, the provision might still leave an applicant in a position whereby he or she could not predict with any degree of certainty how that power might be extended in any given case, giving rise to a lack of predictability and consistency. The Court concluded that section 5 did not comply with the principle of effectiveness.
Because the judicial review was, in effect, a claim based upon the Procedures Directive, section 5 failed the requirements of equivalence and effectiveness and could not be impleaded or relied on by the State against the applicants.
Outcome:
Leave for judicial review was granted with the necessary extensions of time to challenge the refugee decisions.
Subsequent proceedings:
Unusually, the Court granted a certificate for appeal to the Supreme Court of a leave decision on the basis that it was a matter of considerable public importance. The decision was appealed to the Supreme Court but the appeal has not yet been heard (and may not be for some time) (as at November 2011).
Observations/comments:
A very interesting extension of the principle of equivalence.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Ireland - Order 84A Rule 4 of the Rules of the Superior Courts (Ireland) |
| Ireland - Illegal Immigrants (Trafficking) Act 2000 - Section 5 |
Cited Cases:
| Cited Cases |
| CJEU - C-62/00 Marks & Spencer |
| CJEU - C-63/08 Pontin |
| CJEU - C-208/90 Emmott v Minister for Social Welfare |
| CJEU - C-228/96 Aprile |
| CJEU - C-246/09 Bulicke |
| CJEU - C-261/95 Palmisani |
| CJEU - C-338/91 Steenhorst-Neerings |
| CJEU - C-445/06 Danske Slagterier |
| Ireland - CS v. Minister for Justice, Equality and Law Reform [2005] 1 I.R. 343 |