Ireland - High Court, 28 October 2010, P.M. v Minister for Justice and Law Reform, Attorney General and Ireland, [2011] IEHC 409

Facts:

The applicant sought asylum based on a fear of persecution in Botswana on account of her pygmy ethnicity. She was refused asylum and subsidiary protection and a deportation order was made. She then sought to judicially review the decision to deport her on the grounds that she did not have access to an Effective Remedy, within the meaning of Art 39.1 of the Procedures Directive.

Decision & reasoning:

The Court considered that the remedy of judicial review was an “effective remedy” and is sufficiently flexible and accommodating so that every legal right (whether deriving from statute law, the Constitution, the ECHR or EU law) is adequately protected. There is clear caselaw on the matter and the Court did not need to go into the matter in any great detail.

However, the Court noted that there is a pending ECJ reference in the case of HID v Refugee Appeals Commission (Case C-175/11 see comments section below) which may yet impact on the case, and the case is adjourned until the decision on that reference.

Outcome:

The Court refused to grant leave for judicial review, and adjourned the matter pending a decision of the ECJ.

Observations/comments:

Case C-175/11: Reference for a preliminary ruling from High Court of Ireland (Ireland) made on 13 April 2011 — HID, BA v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

Official Journal C 204 , 09/07/2011 P. 0014 - 0014

Questions referred

1. Is a Member State precluded by the provisions of Council Directive 2005/85/EC of 1st December, 2005 [1], or by general principles of European Union Law from adopting administrative measures which require that a class of asylum applications defined on the basis of the nationality or country of origin of the asylum applicant be examined and determined according to an accelerated or prioritised procedure?

2. Is Article 39 of the above Council Directive when read in conjunction with its Recital (27) and Article 267 TFEU to be interpreted to the effect that the effective remedy thereby required is provided for in national law when the function of review or appeal in respect of the first instance determination of applications is assigned by law to an appeal to the Tribunal established under Act of Parliament with competence to give binding decisions in favour of the asylum applicant on all matters of law and fact relevant to the application notwithstanding the existence of administrative or organisational arrangements which involve some or all of the following:

- The retention by a government Minister of residual discretion to override a negative decision on an application;

- The existence of organisational or administrative links between the bodies responsible for first instance determination and the determination of appeals;

- The fact that the decision making members of the Tribunal are appointed by the Minister and serve on a part-time basis for a period of three years and are remunerated on a case by case basis;

- The retention by the Minister of powers to give directions of the kind specified in ss. 12, 16(2B)(b) and 16(11) of the above Act?

[1] OJ L 326, p. 13

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2011:204:0014:01:EN:HTML