CJEU - C-175/11, H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland, Attorney General

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Country of Applicant: 
Nigeria
Date of Decision: 
31-01-2013
Citation: 
C-175/11
Court Name: 
CJEU Second Chamber
Headnote: 

This case concerns Art. 23 of Directive 2005/85/EC and the possibility of prioritising the processing of asylum applications by persons belonging to a certain category defined on the basis of nationality or country of origin. The case also deals with the right to an effective judicial remedy under Art. 39 of Directive 2005/85/EC and the concept of ‘court or Tribunal’ within the meaning of that article.

Facts: 

In each of the two cases in the main proceedings an asylum application was submitted by a Nigerian nationality. Both asylum applications were refused by ORAC. Ms. D and Mr. A each appealed to the High Court seeking annulment of a ministerial direction of 2003 which prioritised all asylum applications by Nigerian nationals claiming it was incompatible with Directive 2005/85. The applicants also claimed that the Refugee Appeals Tribunal is not a ‘Court or Tribunal’ within the meaning of Art. 267 TFEU. On these grounds the High Court referred the following questions to the CJEU for a preliminary ruling: (1) Is a Member State precluded by the provisions of Directive 2005/85 or by general principles of European Union law from adopting administrative measures which require that a class of asylum applications defined on the basis of the nationality or country of origin of the asylum applicant be examined and determined according to an accelerated or prioritised procedure? (2) Is Article 39 of Directive 2005/85 when read in conjunction with its recital 27 and Article 267 TFEU to be interpreted to the effect that the effective remedy thereby required is provided for in national law when the function of review or appeal in respect of the first instance determination of applicants is assigned by law to an appeal to the Tribunal established under Act of Parliament with competence to give binding decisions in favour of the asylum applicant on all matters of law and fact relevant to the application notwithstanding the existence of administrative or organisational arrangements which involve some or all of the following:  - the retention by a government Minister of residual discretion to override a negative decision on an application; - the existence of organisational or administrative links between the bodies responsible for first instance determination and the determination of appeals; - the fact that the decision making members of the Tribunal are appointed by the Minister and serve on a part-time basis for a period of three years and are remunerated on a case by case basis; - the retention by the Minister of powers to give directions of the kind specified in ss. 12, 16(2B)(b) and 16(11) of the [Refugee Act]?

Decision & Reasoning: 

The Court noted that, as already stressed in Samba Diouf, Member States enjoy, in a number of respects, a discretion with regard to the implementation of the provisions of Directive 2005/85 in the light of the particular features of national law. It also follows from the wording of Article 23(3) and (4) that the list of applications which can be subject to prioritised or accelerated examination is indicative and non-exhaustive (Para. 70). Member Sates may thus decide to examine in priority, or by way of an accelerated procedure, applications which do not fall within any of the categories listed in paragraph (4), provided that they comply with the basic principles and guarantees set out in Chapter II of Directive 2005/85. As to the principle of non-discrimination, the Court held that the nationality of the applicant plays a decisive role as appears from both recital 17 and Art. 8 of the directive. Following the opinion of the Advocate General, it held that the nationality of the asylum applicant is an element, which may be taken into consideration to justify the prioritised or accelerated processing of an asylum application. In order to avoid any discrimination between applicants from third countries who might be the subject of a prioritised examination procedure and nationals of other third countries whose applications are subject to the normal procedure, the prioritised procedure must not deprive applicants in the first category of the guarantees required by Art. 23 of Directive 2005/85, which apply to all forms of procedure. The establishment of a prioritised procedure must allow in full the exercise of the rights that the directive confers upon applicants for asylum who are Nigerian nationals (Para 75). The Court took into account in particular the need to enjoy a sufficient period of time within which to gather and present the necessary material in support of their application etc

As regards the national system of appeal, Article 39(1)(a) of Directive 2005/85 states that the Member States must ensure the right to an effective remedy before a Court or Tribunal against a decision taken on their application for asylum. The principle of effective judicial protection, which is a general principle of EU law, is enshrined in Art. 47 of the Charter. The Court took into account its settled case-law on determining whether a body making a reference is ‘a court or tribunal’ for the purposes of Art. 267 TFEU, which is a question governed by EU law alone. The Court takes into account a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it apples rules of law and whether it is independent (Para 83). The Court held that the Refugee Appeals Tribunal meets the criteria of establishment by law, permanence and application of rules of law. Nevertheless the Court went on to address the assertions by the applicants that contest that the procedure before the Refugee Appeals Tribunal is inter partes and independent. The Court noted that the Minister has no discretion where the Refugee Appeals Tribunal has taken a decision favourable to the applicant for asylum and it held that the requirement that the procedure be inter partes is not an absolute criterion. The Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law and rules on the evidence submitted to it, in relation to which it enjoys discretion (Para 93). As regards the independence of the Tribunal the Court held that ‘the concept of independence, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision’. There are two aspects to this concept:: 1) entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them; 2) the second aspect is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests. The Court then went on to examine the Refugee Appeals Tribunal rules for appointment of members etc within the context of this concept and stated ‘ it is necessary to assess as a whole the Irish system of granting and withdrawing refugee status in order to determine whether it is capable of guaranteeing the right to an effective remedy as provided for under Article 39 of that directive (Para 102). The Court took into account the possibility to question the validity of decisions of the Refugee Appeals Tribunal before the High Court, the decisions of which may be appealed to the Supreme Court. The existence of these means of obtaining address were deemed by the Court to be capable of protecting the Refugee Appeals Tribunal against potential temptations to give in to external intervention or pressure liable to jeopardise the independence of its members. Therefore the Court held that the criterion of independence is satisfied within the Irish system as a whole. Consequently the answer to the second question is that Article 39 of Directive 2005/85 does not preclude national legislation which allows an applicant for asylum to lodge an appeal before a Court or Tribunal such as the Refugee Appeal Tribunal, and to bring an appeal against the decision of that Tribunal before a higher Court such as the High Court.

Outcome: 

Article 23(3) and (4) of Directive 2005/85 must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of the directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a Court or Tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that Tribunal before a higher Court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

Subsequent Proceedings : 

Unknown.

Observations/Comments: 

The referring Court requested that this case was dealt with under the urgent procedure provided for in Art. 104b of the Court’s Rules of Procedure. However, the Court decided after the Advocate General had been heard, not to accede to that request. 

Link to case summary also available here: http://www.emn.ie/cat_search_detail.jsp?clog=6&itemID=247

In this case the Court of Justice did not examine the framework surrounding being granted leave to apply to the High Court from a decision of the Refugee Appeals Tribunal but just stated that having such a framework in place to question the validity of the Tribunal’s decisions before the High Court was an important factor in satisfying the criterion of independence, an element of respecting the right to an effective remedy.

Case Law Cited: 

CJEU - C-53/03 Syfait and Others [2005] ECR I-4609

CJEU - C-54/96 Dorsch Consult v Bundesbaugesellschaft Berlin

CJEU - C-109/07 Pilato [2008] ECR I-3503

CJEU - C-196/09 Miles and Others [2011] ECR I-000

CJEU - C-279/09 DEB[2010] ECR I-13849

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

CJEU - C-516/99 Schmid [2002] ECR I-4573

CJEU - C-517/09 RTL Belgium [2010] ECR I-14093
Attachment(s): 
Authentic Language: 
English
Country of preliminary reference: 
Ireland