Court of Appeal: Judicial review is an effective remedy in accordance with EU directive on refugee status
The Minister for Justice, Equality and Law Reform has succeeded in his appeal against a High Court decision (N.M. v. Minister for Justice, Equality and Law Reform IEHC 638), with the Court of Appeal declaring that the trial judge had erred in concluding that the remedy of judicial review was in itself an ineffective remedy.
In the High Court, it was held that the internal review procedure provided by the Minister against adverse decisions at first instance refusing to admit an otherwise failed asylum seeker back into the asylum process did not comply with the effective remedy requirements of Article 39 of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (hereafter the Procedures Directive).
This appeal raised an important point of EU law concerning the interpretation and requirements of Article 39 of the Procedures Directive, which sets out the obligations of Member States to provide the right to an effective remedy in appeals procedures.
The applicant, N.M, is a national of the Democratic Republic of Congo (DRC) who arrived in Ireland and made a claim for asylum in April 2008. She had contended that she was of Rwandan parentage and that by reason of an allegation of espionage she was at risk from the authorities in the DRC.
The Refugee Applications Commissioner refused her application and the Refugee Appeals Tribunal subsequently upheld this decision in February 2011. The Minister subsequently refused her a declaration of refugee status pursuant to section 17 of the Refugee Act 1996.
On 30th March 2011 N.M then applied to the Minister for subsidiary protection, claiming that she was at risk of torture and inhuman and degrading treatment in the DRC. The Minister refused this application and in September 2011 a deportation order was made against her.
N.M’s solicitors then made an application pursuant to section 3(11) of the Immigration Act 1999 seeking the revocation of the order.
In October 2012, N.M sought readmission to the asylum process pursuant to section 17 (7) of the Refugee Act 1996 on the ground, effectively, that she was now a refugee sur place. Her contention in this regard was that the DRC had a policy of ill-treating those of its citizens who had unsuccessfully applied for asylum status abroad following their return to their country of origin. The Minister refused this application for readmission, but N.M was nonetheless advised that she was entitled to a review of that decision.
N.M then applied for a review of the decision, which was carried out by a more senior official attached to the Ministerial Decisions unit of the Department. Following the review process a fresh adverse decision was communicated to N.M in February 2013.
In the meantime, N.M’s solicitors had written to the Minister contending that the review process proposed by the Minister did not accord with the provisions of the Procedures Directive – specifically Article 39 – an argument that was not accepted by the Minister.
N.M then commenced judicial review proceedings in which the compatibility of the review procedures with Article 39 of the Procedures Directive was directly put at issue.
The key issue was whether the procedure set out in the European Communities (Asylum Procedures) Regulations 2011 (S.I. 51 of 2011) was lawful having regard to the provisions of the Procedures Directive – particularly Article 39.
Proper interpretation of Article 39
The leading decision of the Court of Justice in respect of the proper interpretation of Article 39 is that in Case C-69/10 Diouf, which Justice Hogan stated was a decision of manifest importance.
In Diouf, the court held that Article 39 ‘must be interpreted as not requiring national law to provide for a specific or separate remedy against a decision to examine an application for asylum under an accelerated procedure’ – therefore the fact that decisions can be subject to judicial review satisfies the principle of effective judicial protection.
Judicial review as an effective remedy
Justice Hogan cited his own High Court judgements delivered in the PM (Botswana) litigation between 2011 and 2012 – stating that the critical point to emerge from the various decisions in PM (Botswana) was that the remedy of judicial review also constituted in principle an effective remedy for the purposes of Article 39.
Furthermore, in considering the principles laid down in Meadows v. Minister for Justice IESC 3 (principles of proportionality and unreasonable that were subsequently developed in ISOF v. Minister for Justice IEHC 457 and Efe v. Minister for Justice IEHC 214) – Justice Hogan affirmed that in the light of this trilogy of case-law it was clear that what might be termed modern, post-Meadows-style judicial review will satisfy the effective remedy requirements of Article 39.1 of the Procedures Directive.
Justice Hogan stated that the fact that N.M could challenge the validity of any decision of the Minister to refuse to admit her to the asylum process in accordance with section 17 of the Refugee Act 1996 (as amended) by way of judicial review, meant that the State provided her with an effective remedy within the meaning of Article 39 of the Procedures Directive.
As a consequence of this conclusion, the High Court must ensure that the reasons which led the Minister ‘to reject the application for asylum as unfounded… be the subject of a thorough review by the national court’ (as per Diouf).
As there was no reason why this could not be achieved by the High Court in judicial review proceedings by reference to the Meadows principles, Justice Hogan held that it was clear that contemporary judicial review did indeed provide an effective remedy for the purposes of Article 39.
Justice Barr had erred in concluding that the remedy of judicial review was in itself an ineffective remedy for the purposes of Article 39.
Therefore, the appeal of the Minister against the decision of the High Court was allowed and set aside.