Ireland - High Court, 27 July 2011, M.A. (a minor) v Minister for Justice, Equality and Law Reform, [2011] IEHC 323

Country of Decision:
Country of Applicant:
Date of Decision:
27-07-2011
Citation:
[2011] IEHC 323
Additional Citation:
2010 No. 1102 J.R.; [2011] 2 I.R. 522
Court Name:
High Court (Smyth J.)
National / Other Legislative Provisions:
TFEU
TFEU - Art 267
Ireland - Courts of Justice Act 1924
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006)
Ireland - Illegal Immigrants (Trafficking) Act 2000 - Section 5
Ireland - Immigration Act 1999 - Section 3
Ireland - Refugee Act 1996 - Section 5
Ireland - Refugee Act 1996 - Section 17(7)
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Headnote: 

The asylum application of the applicant, a minor suing through her mother, had been deemed withdrawn. An application to have the asylum claim readmitted was refused by the Minister for Justice, Equality and Law Reform. The High Court refused to set aside the decision of the Minister. The applicant applied to the High Court for leave to appeal the matter to the Supreme Court, and/or a reference to the Court of Justice of the European Union (ECJ). The High Court refused both applications.

Facts: 

The applicant, a minor child, made an asylum application but did not attend for interview, due to administrative error the interview was not rescheduled and the application was ultimately deemed withdrawn. The Minister then refused to exercise his discretion under Section 17(7) of the Refugee act 1996 to allow her application to be examined. The High Court declined to set aside this refusal.

The applicant then sought a certificate to allow her to appeal to the Supreme court on the basis of a point of law of exceptional public importance, and the desirability in the public interest that the Supreme Court should decide whether the Minister had a duty to consider the best interests of the child pursuant to Article 24.2 of the Charter of Fundamental Human Rights of the European Union when deciding whether to re-admit a minor to the asylum process. Alternatively the applicant sought a preliminary opinion from the ECJ under Article 267 of TEFU as the case was now one “against whose decisions there is no judicial remedy under national law”.

Decision & Reasoning: 

THE Court examined the domestic caselaw on the issue of the test of “exceptional public importance” and found that the facts were “quite unusual” and there would be no public benefit in an appeal;

The Court found, in relation to a reference, that further remedies were available to the applicant;

There was nothing to suggest the respondent was unaware that the interests of a minor child were at issue when they made their decisions;

The Minister had applied the correct test in refusing the application to readmit to the asylum process. A referral was unnecessary as the opinion of the ECJ “could have no utility” in the issue;

The Court found that  the purpose of a referral to the ECJ was to enable a national court to get guidance in relation to a case pending before it, which did not apply;

No issue of European law had arisen during the case in relation to which guidance was needed;

Outcome: 

The Court refused the application for a certificate to appeal to the Supreme Court and found that the question of a reference did not arise.

Observations/Comments: 

Ireland does not have a single procedure for the examination of subsidiary protection applications.

In Ireland minors pursue applications in relation to administrative procedures and the court system through the mechanism of a responsible adult, termed a “next friend”.

Case Law Cited: 

CJEU - C-99/00 Lyckeskog

CJEU - C-166/73 Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel

Ireland - Arklow Holidays Limited v An Bord Pleanála (No 2) [2007] 4 I.R. 124

Ireland - Glancré Teoranta v An Bord Pleanála (Unreported), High Court, MacMenamin J., 13 July 2006

Ireland - Kenny v An Bord Pleanála [2011] IR 704

Ireland - McNamara v An Bord Pleanála [1998] 3 IR 453

Ireland - R. v The Refugee Appeals Tribunal [2009] IEHC 510

Ireland - S v The Refugee Appeals Tribunal (Unreported, High Court, Cooke J. 26 March 2010)

UK - CILFIT v Ministry of Health Case 283/81 (1982) ECR 3415

UK - Chiron Corporation v Murex Diagnostics Ltd. (1995) All ER (EC) 88

UK - Singh (Mandiver) v Secretary of State for the Home Department (8th December 1995, CA)