Ireland - N.M (DRC) -v- The Minister for Justice, Equality and Law Reform [2016] IECA 217

Country of Decision:
Country of Applicant:
Date of Decision:
14-07-2016
Court Name:
Court of Appeal (Peart J., Irvine J., Hogan J.)
National / Other Legislative Provisions:
Ireland - Section 17(7) Refugee Act 1996 (as amended)
Ireland - Section 3(11) Immigration Act 1999
Ireland - Section 3 European Communities Act 1972
Ireland - Section 5(2) Illegal Immigrants (Trafficking) Act 2000
Ireland - Article 40.3.1 and 40.3.2 of the Constitution
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Headnote: 

This case examines whether, for a subsequent application, internal review followed by Judicial Review is an effective remedy, as provided by Article 39 of the Council Directive 2005/85/EC (“the Asylum Procedures Directive”).

Facts: 

This is an appeal by the Minister for Justice, Equality and Law Reform against the decision of the High Court (N.M.v. Minister for Justice Equality and Law Reform [2014] IEHC638, delivered 18th December). In that decision Barr J. held that the internal review procedure against the Minister’s decision to refuse to re-admit an otherwise failed asylum seeker into the asylum process, did not comply with the effective remedy requirements of Article 39 of the Procedures Directive.

The applicant, a national of DRC, claimed asylum on 25th April 2008. Of Rwandan parentage and by reason of an allegation of espionage she contended she was at risk from the authorities in the DRC. Her application was refused and, in an appeal to the Refugee Appeals Tribunal, the refusal decision was upheld (18th February 2011). A subsequent application for subsidiary protection was refused and in September 2011 a deportation order was issued. In October 2012 the applicant sought re-admission to the asylum process pursuant to s.17(7) of the Refugee Act 1996 (“the 1996 Act”) on the grounds that she was now a refugee sur place, based on reports of ill-treatment on return to DRC of unsuccessful asylum seekers. The applicant claimed that the DRC had a policy of ill-treating those of its citizens who had unsuccessfully applied for asylum abroad following their return to their country of origin. This application was refused by the Minister however the applicant applied for a review of the decision. A more senior official in the same Ministerial Department issued a fresh adverse decision on 7th February 2013. The applicant then commenced judicial review proceedings challenging the compatibility of the present review procedures with Article 39 of the Procedures Directive and in the High Court decision Barr J. held that these did not provide effective remedy.

Decision & Reasoning: 

In the earlier High Court judgement under review, Barr J. found that judicial review did not satisfy the requirements of an effective remedy due to the limitations on the jurisdiction of the court, which can only interfere in the event of an error of law or fact, or where there appears to be unfairness in procedure or if the decision was irrational.

In this case, however, Hogan J. examining the historic case law on judicial review as an effective remedy, finds that a contemporary post-Meadows interpretation of Judicial Review ( i.e. that the general proportionality principle applies to judicial review of administrative decisions) does allow for an effective remedy for the purposes of Article 39.

Hogan J. firstly references Articles 32, 34 and 39 of the Procedures Directive and Section 17(7) of the Refugee Act 1996 (as amended). The essential question the Court has to address is whether the procedures provided in the 2011 Regulations transposing the Procedures Directive constitute an adequate transposition of Article 39(1)(c) of the Procedures Directive.

Hogan J. goes back to the Court of Justice Case C-69/10 Diouf, concerning the decision to subject a case to accelerated procedures: while a review of the procedure “must not be wholly precluded…, [it] may be delayed until the review of the substantive final decision on the merits of the asylum application ultimately takes place” (Para 26). Therefore Judicial Review in this instance provided an effective remedy for the accelerated procedures decision which did not otherwise attract a right of appeal to a court.

Overall Hogan J, relying upon previous administrative jurisprudence held that the Refugee Appeals Tribunal satisfied the requirements under Article 39(1) in terms of independence and that the Court’s judicial review mechanism was sufficient to ensure that constitutional rights were respected.

In his analysis of post-Meadows caselaw, Hogan J. concludes that judicial review does satisfy the effective remedy requirements of Article 39.1 of the Procedures Directive as the court can review decisions that are not factually sustainable. Hogan J. therefore holds that Barr J.’s analysis of judicial review “underplay[s] the scope of contemporary, post-Meadows judicial review” which can “quash for unreasonableness or lack of proportionality… or where the decision simply strikes at the substance of constitutional or EU rights.” He noted that the Court in Judicial Review can also quash a decision for material error of fact.

Hogan J held that while it is correct that judicial review cannot be equated with an appeal simpliciter it seems clear from Diouf that this is not what Article 39(1) of the Procedures Directive requires. He held that “Article 39 is not, therefore, prescriptive regarding the choice of remedy and it is open in principle, therefore to each Member State to choose as between some form of appeal on the one hand and judicial review on the other. In any event, the Court of Justice said as much in Diouf in holding that Article 39 did not require Member States to provide for a ‘specific remedy’” (Para 55).

Nonetheless, Article 39 imposes a critical requirement namely that the remedy in question must remain an effective one. This means that the supervisory jurisdiction of the High Court must be ample enough to ensure that the reasons which led the competent authority to reject the application for asylum as unfounded may be the subject of a thorough review by the national court. The Court held that the standard O’Keeffe test can no longer be applied to judicial review applications in asylum matters such as the present one in which the protection of either constitutional rights or EU law are engaged. Hogan J. held that the Court’s duty of loyal co-operation with the requirements of EU law would, in any event, require that domestic law of judicial review is remoulded in this manner in order to accommodate the requirements of Article 39.1.

However, Hogan J. acknowledges the limitations identified by Barr J. but does not accept that these do not deprive judicial review “of the character of effective remedy.” Hogan J. finds that what is critical is that the judicial review court can subject the reasons of the decision maker to thorough review which he believes is performed by the Irish High Court using contemporary judicial review standards.

In conclusion the court held that the fact that the applicant may 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 means that the State has provided her with an effective remedy within the meaning of Article 39 of the Procedures Directive.

The Court accordingly allowed the appeal of the Minister against the decision of the High Court.

Outcome: 

Appeal of the Minister against the decision of the High Court allowed.

Other sources cited: 

Daly, “Judicial Review of Factual Error in Ireland” (2008) 30 Dublin University Law Journal 187.

Case Law Cited: 

Ireland - O’Leary v. Minister for Justice [2012] IEHC 80

Ireland - Aer Rianta CPT v Commission for Aviation Regulation [2003] IEHC 12

Ireland - Efe v Minister for Justice, Equality and Law Reform [2011] IEHC 214

CJEU - C-506/14 Wilson [2006] ECR I-8613

UK - Carltona Ltd. V. Commissioners of Works [1943] 2 All E.R.560

Ireland - P.M. (Botswana) v. Minister for Justice and Law Reform, Attorney General and Ireland, [2012] IEHC 34

Ireland - ISOF v. Minister for Justice [2010] IEHC 457

Ireland - The State (Lynch) v Cooney [1982] I.R. 337

Ireland - O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39

Ireland - Holland v. Governor of Portlaoise Prison [2004] IEHC 208

Ireland - S. v. Minister for Justice [2011] IEHC92

Ireland - I v. Minister for Justice, Equality and Law Reform [2007] IEHC 180, [2008] 1 I.R.208

Ireland - Clinton v. An Bord Pleanála (No. 2) [2007] IESC 19, [2007] 4 I.R. 701

Ireland - The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642

Ireland - East Donegal Co-Operative Ltd. V. Attorney General [1970] I.R.317

Ireland - Hill v. Criminal Injuries Compensation Tribunal [1990] I.L.R.M. 36

Ireland - AMT v. Refugee Appeal Tribunal [2004] 2 I.R. 607

Ireland - L. v. Minister for Justice, Equality and Law Reform [2010] IEHC 362

Ireland - HR v. Refugee Appeal Tribunal [2011] IEHC 151