Case summaries

The appeal authority is obliged to assess the case on the basis of all the evidence and to provide proper grounds for its decision. It is not sufficient, therefore, to state in general terms that the second-instance authority shares the position of the head of the Polish Office for Foreigners and the arguments put forward by him. If the principle of two-instance administrative proceedings is to be observed, it is not enough to assert that two decisions by two authorities of different rank were issued in the given case.

The Court granted permission to the Applicant to seek judicial review of the negative decision made in a written appeal (rather than an oral appeal) in an application for refugee status made by a South African national. The decision to allow a written appeal was based on the status of South Africa as a ‘safe country,’ but because the appeal decision was based on personal credibility, the absence of an oral hearing may have been unlawful by reference to the right to an effective remedy as guaranteed by the Asylum Procedures Directive.

The application by the Applicant for the assignment of a legal adviser for the appeal proceedings was rejected by the Asylum Court because it was late, as the Applicant had only submitted the application after the expiry of the one-month transition period. The Constitutional Court annulled the corresponding transitional regulation on grounds of unconstitutionality: a deadline of only one month was too short to deal with the lack of understanding of asylum seekers of the language and law.

The High Court held that in a case where a negative recommendation in a first instance application for asylum was based exclusively or primarily upon a finding of a personal lack of credibility, there is an obligation to allow an oral appeal in order to provide an "effective remedy," in the sense of Article 39 of the Asylum Procedures Directive, notwithstanding that the Applicant is from a “safe country” and the legislation allows for limiting an Applicant to a written appeal only in those circumstances. For the same reasons, to allow an oral appeal is also required by the right to fair procedures contained in Article 40.3 of the Constitution of Ireland.

This case was an application for a certificate to appeal to the Supreme Court. The applicant unsuccessfully argued that she was denied an effective remedy within the meaning of Art 39 of the Procedures Directive in respect of her claim for asylum.

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.

This case concerned the concept of ‘safe country’ within the Dublin system and respect for fundamental rights of asylum seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Art. 4 Charter must be interpreted as meaning that the Member States may not transfer an asylum seeker to the Member State responsible within the meaning of the Regulation where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of the provision. Once it is impossible to transfer the asylum seeker to the responsible Member State then subject to the sovereignty clause the State can check if another Member State is responsible by examining further criteria under the Regulation. This should not take an unreasonable amount of time and if necessary then the Member State concerned must examine the asylum application. 

According to the residence permit application, the Applicant, born in 1935, has various ailments and he is fully dependent on his daughter who lives in Finland and is a Finnish citizen.  In an interim order, the Administrative Court turned down the Applicant’s non-refoulement argument  and held that judgment would be made on the substantive issue at a later date.  While the substantive issue was still pending at the Administrative Court seeking a stay on the execution of the interim order so that he would not to be deported while the Administrative Court decided on the substantive issue (a ‘repeal’ application).  As according to national legal provisions, a repeal application can only be made on a judgment  which has entered into force, the repeal application was inadmissible. Administrative Court, the Applicant applied to the Supreme

Because the failure to accept the non-refoulement argument might render the appeal on the substantive issue de facto ineffective, in order to guarantee the Applicant’s legal protection, in exceptional circumstances there was reason to carry out a review to determine whether his appeal should be handled  by the Supreme Administrative Court without it being detrimental to the final decision under Section 58 of the Administrative Procedure Act and Section 199 Article 2 of the Aliens Act. 

This case concerned the right to an effective remedy; the Court considered that the remedy of judicial review in Irish law is an effective remedy within the meaning of Art 39.1 of the Procedures Directive.

This was a decision on an injunction application in the course of judicial review proceedings challenging a subsidiary protection decision and deportation order on the basis of a failure by the Minister to cooperate with the applicant in processing the subsidiary protection application and that the failure to provide a mechanism of appeal against a refusal of subsidiary protection  breaches the principal of equivalence in European Union law in that the procedure under the (Irish) 2006 Regulations is inferior to that provided for in national law (the Refugee Act 1996 as amended) in respect of decisions on claims for asylum.

The (injunction) application was rejected on the basis that it was only since the requirements of the Procedures Directive, and, in particular, the deeming provision of its Annex 1, became effective in Irish law (in 2007) that the recommendation of the Commissioner fell to be considered as the first instance determination by a “determining authority” with an appeal to the Refugee Appeals Tribunal. Thus, insofar as the provisions of the 1996 Act can now be pointed to as providing a two-stage determination for an asylum application including a right to an effective remedy by way of appeal, it is only because of the manner in which the State has adapted the arrangements of the 1996 Act in order to comply with the requirements of the Procedures Directive for asylum (refugee) applications pursuant to Article 3.1. Furthermore, without a unified system for both applications the minimum procedural standards provide for in the Procedures Directive do not apply to a separate and discrete subsidiary protection application.

In relation to the ‘co-operation’ point the Court found that a claim of non-compliance with such a duty of “co-operation” or the principle audi alteram partem cannot be made as a purely academic point divorced from specific facts. The applicant in this case eschewed the need to identify any particular finding in the Subsidiary Protection determination which might have been corrected or altered had the applicant been consulted upon it.

Unlike the Procedures Directive, Article 4.1 of the Qualifications Directive refers to the duty of co-operation in respect of the “application for international protection,” that is, the claim to asylum and the claim to subsidiary protection. Article 14.2 of the Procedures Directive recognises, however, that the report of the personal interview with the applicant on which the decision of the determining authority on an asylum application is based, may be communicated to the asylum seeker after the decision has been adopted. The Court found that it would be inconsistent with these arrangements that the duty of cooperation in Article 4.1 should be construed as imposing on a determining authority a mandatory obligation to submit either the report or a draft decision in relation to a subsidiary protection application to an applicant for prior comment. Furthermore, the duty to co-operate provided for in Article 4.1only applies to those elements of the claim described in Article 4.2. These are, in effect, the basic facts and documents relating to the applicant’s personal history and to the basis of the claim and they are primarily considered and assessed in the asylum process including any appeal.