Ireland - High Court, 11 January 2012, P.I., E.I. (An Infant) and J.N.I. (An Infant) v Minister for Justice and Equality, [2012] IEHC 7
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
Headnote:
This was an application for an interim injunction preventing the removal of the applicants pending the outcome of their application for leave to apply for judicial review. The underlying leave application raised several different points, of these, one was deemed arguable: that Ireland’s deportation regime involving a lifetime ban on re-entry is contrary to the ECHR and Irish Constitution.
Facts:
The first applicant was the mother of the second and third applicants. They applied for leave to apply for judicial review of the decisions to (i) deny them subsidiary protection and (ii) deport them. The instant case was the hearing of their interlocutory injunction application, which sought to secure them a stay on removal while proceedings were on-going.
Decision & reasoning:
The applicants argued in their leave application that they had been denied an effective remedy in respect of their challenge to the decision not to grant subsidiary protection, and the decision to deport them from Ireland. The applicants also argued that the absence of a right of appeal in respect of their subsidiary protection applications breached the EU principle of equivalence, and that Ireland had failed to properly transpose Art 4.1 of the Qualification Directive.
The Court gave short consideration to the applicants’ arguments, as this was not a full leave hearing, but a hearing to decide whether to grant them a stay on removal.
In relation to the applicants’ argument regarding an effective remedy, the Court stated, as it has in previous decisions, that it considers the remedy of judicial review to be sufficiently flexible so as to constitute an ‘effective remedy’.
The Court followed earlier decisions of the High Court, in finding that the equivalence principle argument advanced by the applicants was unfounded – Ireland does not have a unified procedure (in contrast to all other EU states), and is accordingly entitled to treat asylum and subsidiary protection applications differently – this different treatment is sanctioned by the Procedures Directive itself.
As to the argument that the State had failed to properly transpose Art 4.1 of the Directive, the Court noted that it has already referred a question on the interpretation of Art 4.1 to the Court of Justice, and awaits a decision. The Court was not of the view that the answer to this question (even if it is resolved in favour of the applicant in that case) would mean there is any failure to transpose the Directive correctly – rather, it would mean that it was misinterpreted by the State, which is a different matter.
Lastly, the applicants argued that the lifelong effect of a deportation order is unconstitutional, and incompatible with the European Convention on Human Rights. The Court considered that this was arguable, and accordingly the applicants were entitled to a stay on removal, pending the outcome of their application for leave for judicial review.
Outcome:
An interim injunction to prevent removal was granted.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - High Court, 12 October 2011, A. v Minister for Justice, Equality and Defence [2011] IEHC 381 |
| Ireland - High Court, 18 May 2011, M.M.v Minister for Justice Equality and Law Reform 2011 No. 8 J.R. |
| Ireland - High Court, 25 January 2011, T.D., N.D. and A.D. v Minister for Justice 2011 IEHC 37 |
| Ireland - High Court, 6 October 2011, S.L. v Minister for Justice Law Reform, Ireland and the Attorney General, [2011] IEHC 370 |
| ECtHR - Emre v Switzerland (no. 2) (Application no. 5056/10) |
| ECtHR - Emre v. Switzerland (no.1) (Application no. 42034/04) |
| Ireland - Adebayo v Garda Commissioner [2006] 2 IR 298 |
| Ireland - Campus Oil Ltd v Minister for Industry and Commerce [1983] IR 67 |
| Ireland - O v Minister for Justice and Equality [2011] IEHC 441 |
| Ireland - P.J. v Minister for Justice and Equality, [2011] IEHC 433 |
| Ireland - S.Z. v Minister for Justice and Equality, High Court, (Unreported), 14 November 2011 |
| Ireland - U v Minister for Justice, Equality and Law Reform [2010] IEHC 492 |