Ireland - High Court, 7 July 2010, E v Refugee Appeals Tribunal, 2007 No. 560 JR (Unreported)
Keywords:
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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. |
Headnote:
This case concerned the asserted right of an applicant to cross-examine the representative of the State who was presenting the State’s case on appeal to the Tribunal.
Facts:
The applicant was refused refugee status by the Irish government and on appeal by the Refugee Appeals Tribunal. During the hearing before the Tribunal he sought to cross-examine the State’s representative, relying on his right to fair procedures and natural justice. The Tribunal refused to permit this, and the applicant sought judicial review, relying on his statutory right to call and examine witnesses contained in the Refugee Act 1996 (Appeals) Regulations 2003.
Decision & reasoning:
The Court held that the Tribunal was entitled to refuse to allow questioning of the State’s representative (the ‘Presenting Officer’) as that person did not give evidence at the hearing and was not a witness: they are a ‘legitimus contradictor’. Only witnesses can be cross-examined. The Court considered the request to cross-examine this individual “bizarre” and upheld the Tribunal’s refusal to permit this at the hearing.
Outcome:
Judicial review was refused.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - T.T.A. (Akintunde) v Minister for Justice, Equality and Law Reform [2009] IEHC 215 |