Ireland - High Court, 27 July 2011, M.A. (a minor) v Minister for Justice, Equality and Law Reform, [2011] IEHC 323
Keywords:
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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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.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
The asylum application of the applicant, a minor suing through her mother, had been deemed withdrawn. An application to have the asylum claim readmitted was refused by the Minister for Justice, Equality and Law Reform. The High Court refused to set aside the decision of the Minister. The applicant applied to the High Court for leave to appeal the matter to the Supreme Court, and/or a reference to the Court of Justice of the European Union (ECJ). The High Court refused both applications.
Facts:
The applicant, a minor child, made an asylum application but did not attend for interview, due to administrative error the interview was not rescheduled and the application was ultimately deemed withdrawn. The Minister then refused to exercise his discretion under Section 17(7) of the Refugee act 1996 to allow her application to be examined. The High Court declined to set aside this refusal.
The applicant then sought a certificate to allow her to appeal to the Supreme court on the basis of a point of law of exceptional public importance, and the desirability in the public interest that the Supreme Court should decide whether the Minister had a duty to consider the best interests of the child pursuant to Article 24.2 of the Charter of Fundamental Human Rights of the European Union when deciding whether to re-admit a minor to the asylum process. Alternatively the applicant sought a preliminary opinion from the ECJ under Article 267 of TEFU as the case was now one “against whose decisions there is no judicial remedy under national law”.
Decision & reasoning:
THE Court examined the domestic caselaw on the issue of the test of “exceptional public importance” and found that the facts were “quite unusual” and there would be no public benefit in an appeal;
The Court found, in relation to a reference, that further remedies were available to the applicant;
There was nothing to suggest the respondent was unaware that the interests of a minor child were at issue when they made their decisions;
The Minister had applied the correct test in refusing the application to readmit to the asylum process. A referral was unnecessary as the opinion of the ECJ “could have no utility” in the issue;
The Court found that the purpose of a referral to the ECJ was to enable a national court to get guidance in relation to a case pending before it, which did not apply;
No issue of European law had arisen during the case in relation to which guidance was needed;
Outcome:
The Court refused the application for a certificate to appeal to the Supreme Court and found that the question of a reference did not arise.
Observations/comments:
Ireland does not have a single procedure for the examination of subsidiary protection applications.
In Ireland minors pursue applications in relation to administrative procedures and the court system through the mechanism of a responsible adult, termed a “next friend”.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-99/00 Lyckeskog |
| CJEU - C-166/73 Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel |
| UK - Chiron Corporation v Murex Diagnostics Ltd. (1995) All ER (EC) 88 |
| UK - CILFIT v Ministry of Health Case 283/81 (1982) ECR 3415 |
| UK - Singh (Mandiver) v Secretary of State for the Home Department (8th December 1995, CA) |
| Ireland - Arklow Holidays Limited v An Bord Pleanála (No 2) [2007] 4 I.R. 124 |
| Ireland - Glancré Teoranta v An Bord Pleanála (Unreported), High Court, MacMenamin J., 13 July 2006 |
| Ireland - Kenny v An Bord Pleanála [2011] IR 704 |
| Ireland - McNamara v An Bord Pleanála [1998] 3 IR 453 |
| Ireland - R. v The Refugee Appeals Tribunal [2009] IEHC 510 |
| Ireland - S v The Refugee Appeals Tribunal (Unreported, High Court, Cooke J. 26 March 2010) |