Ireland - High Court, 9 February 2011, H. I. D. (a minor) & Anor v Refugee Applications Commissioner & Ors [2011] IEHC 33
Keywords:
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Accelerated procedure
Description
Prioritisation or acceleration of any examination in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive, including where the application is likely to be well-founded or where the applicant has special needs or for any of the reasons in Article 23(4) of the Asylum Procedures Directive |
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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.” |
Headnote:
The cases concerned two important issues: whether the processing of the refugee applications had been unlawfully accelerated or prioritised on the basis that the applicants were Nigerian, and whether the applicants were deprived of an effective remedy against the first instance determinations of the applications which was in compliance with Chapter V of the Procedures Directive. The Court found that Article 23(3) of the Procedures Directive permitted prioritisation/acceleration of any category of case and that the refugee appeals procedure in Ireland satisfied Article 39 of the Procedures Directive.
Facts:
The applicant in the first case was a minor who had arrived in Ireland in 2008 with her mother. An application for asylum was made on her behalf on grounds of fear of female genital mutilation (FGM) and/or death by her community. The claim was rejected at first instance and an appeal stood postponed pending these proceedings.
The applicant in the second case arrived in Ireland in 2008 and claimed asylum on grounds of fear of ill treatment by local chiefs following discovery of his homosexual orientation. A negative determination at first instance was unsuccessfully appealed to the Refugee Appeals Tribunal.
Decision & reasoning:
In laying down minimum standards for the common process of examining and determining asylum applications, the Procedures Directive explicitly excludes any purpose or objective of intruding upon or seeking to harmonise the managerial aspects of the asylum process in member states. This clearly reflects the divergences that may exist between the needs of the different Member States including, for example, those with frontiers to third countries from which large numbers of migrants first arrive upon the territory of the European Union was compared with those which, for reasons of distance from such frontiers, language or other factors, may receive far smaller numbers of applications.
Article 23(3) of the Procedures Directive is explicitly facultative in providing that Member States “may” prioritise or accelerate “any” examination. Thus there is no obligation imposed on Member States to provide for a prioritised procedure of examination as such even for cases which are well founded or involve applicants with special needs. Nor is any express limitation placed on the type of application that may be prioritised. The essential wording of Article 23 contains no express restraint or limitation on the type of application that may be prioritised and the listed instances are not exhaustive.
The Refugee Appeals Tribunal is a “court or tribunal” for the purposes of Article 267 TFEU. Its jurisdiction is compulsory and its decisions on appeal are binding. The Minister for Justice has no discretion to deprive an applicant of the benefit of a positive recommendation either at first instance or at appeal. The appeal to the Tribunal satisfies Article 39 of the Procedures Directive.
Outcome:
The reliefs sought by the applicants by way of judicial review were refused.
Subsequent proceedings:
A reference was made to the CJEU on the application for a certificate for appeal to the Supreme Court.
Observations/comments:
In most Asylum/Immigration cases a certificate from the High Court is required for an appeal to the Supreme Court. The certificate is only granted in cases that are considered to be of exceptional public importance. In both of these cases, the applicants lost the Judicial Review but the Judge, at the stage of the application for a certificate, decided that the matter should be referred to the ECJ. This was on the basis that if he refused the certificate, the High Court would become the Court of final jurisdiction as the applicants could not then appeal.
Cited Cases:
| Cited Cases |
| Ireland - High Court, 10 February 2010, X.L.C. v Minister for Justice Equality and Law Reform and Anor., [2010] IEHC 148 |
| CJEU - C-38/02 Collins v Secretary of State for Work and Pensions |
| CJEU - C-41/74 Van Duyn v Home Office |
| CJEU - C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin |
| CJEU - C-246/80 Broekmeulen v Huisarts Registratie Commissie |
| CJEU - C-248/83 Commission v Germany |
| Ireland - AD v Refugee Applications Commissioner [2009] IEHC 77 |
| Ireland - CCD Teo v An Bord Pleanála, unreported, High Court, Cooke J., 6 February 2009 |
Follower Cases:
| Follower Cases |
| Ireland - High Court, 31 January 2012, P.M. (Botswana) v Minister for Justice and Law Reform, Attorney General and Ireland, [2012] IEHC 34 |
Other sources:
UN High Commissioner for Refugees, UNHCR Statement on the right to an effective remedy in relation to accelerated asylum procedures, 21 May 2010