A & B v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice John MacMenamin
• Judgment Date: 18 July 2022
• Neutral Citation: [2022] IESC 35
• Court: Supreme Court
• Docket Number: [2021] IEHC 25 High Court Record Numbers: 2019 No 650 JR and 2020 No 119 JR

Between

A and B

Applicants/Appellants

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

[2022] IESC 35

MacMenamin J

Dunne J

Charleton J

Baker J

Hogan J

[2021] IEHC 25

Supreme Court appeal numbers: S:AP:IE:2021:000092 and S:AP:IE:2021:000090

High Court Record Numbers: 2019 No 650 JR and 2020 No 119 JR

An Chúirt Uachtarach

The Supreme Court

International protection – Extensions of time – International Protection Act 2015 s. 2 – Appellants seeking extensions of time within which to appeal – Whether s. 2 of the International Protection Act 2015 offends against the EU principles of legal certainty or access to an effective legal remedy

Facts: The appellants both arrived in the State and applied under s. 15 of the International Protection Act 2015 for international protection in the form of political asylum or subsidiary protection. Their cases were considered by international protection officers (IPOs), appointed under the Act. The officers made recommendations that the applications be refused under s. 39(3)(b) of the Act. Both officers then issued reports to the second respondent, the Minister for Justice and Equality, under s. 40 of the Act, conveying their recommendations. The Minister accepted the officers’ recommendations. Exercising the power vested under s. 47(5)(b) of the Act, the Minister refused to grant the appellants international protection, and later made orders for their deportation under s. 51 of the Act. The appellants retained solicitors, who made applications on behalf of their clients to the first respondent, the International Protection Appeals Tribunal, to extend the time within which to appeal the officers’ s. 39 decisions, as, by then, the time limit for filing appeals had expired. The Tribunal refused to entertain the applications, relying on the provisions of the Act. The High Court (Barrett J) upheld those decisions ([2021] IEHC 25). The respondents’ case was that persons who apply for international protection, and who do not appeal within the time limit provided for appeals, are no longer “applicants” within the meaning of the Act, and consequently, are thereby precluded from applying for extensions of time. The appellants challenged whether the definition complied with EU law and the Constitution. The High Court judge held that s. 2 of the Act, which defines the term “applicant”, did not offend against the EU principles of legal certainty or access to an effective legal remedy, and did not infringe the appellants’ rights to appeal under the Constitution. The appellants appealed directly to the Supreme Court, raising arguments under the same headings as in the High Court.

Held by MacMenamin J that he was not persuaded s. 2(2) or s. 47(5) of the Act were in breach of EU law. He held that, properly construed, s. 2 of the Act did not infringe the appellants’ rights. He held that the appellants were not mounting a collateral attack on decisions made under s. 39(3) of the Act. He held that the appellants were, however, entitled to an order of judicial review by way of certiorari, arising from the first respondent’s incorrect and unlawful interpretation and purported application of s. 2(2), in conjunction with s. 47(5)(b) of the Act. He held that the combined effect of the first respondent’s broad interpretation of the two provisions constituted a bar which had the effect of infringing the appellants’ right to fair procedures to apply for extensions of time within which to appeal, without either provision, in itself, being a violation of the Constitution.

MacMenamin J granted a declaration that the first respondent erred in law, and acted ultra vires, in precluding the appellants from applying to extend the time within which to file their appeals. He held that the appellants were entitled to orders of judicial review quashing those decisions. He reversed the High Court judgment to that extent, granted an order of certiorari of the decisions made, and remitted the applications to extend time to the Tribunal to determine in accordance with law.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Monday 18 July 2022

1 At issue are three questions, in essence, which will decide this appeal:

• • Firstly, is there a statutory lock whereby if an applicant for refugee status or subsidiary protection is refused by the International Protection Office, but there is no appeal lodged in time to the International Protection Appeals Tribunal, and where the Minister declares the person no longer to be an applicant, does the International Protection Act 2015 prohibit any re-entry into the system?

• • Secondly, such a statutory lock does exist, is there any discretion in the Minister to revise a decision that a person deemed no longer an applicant may again enter the appeals system?

• • Thirdly, where the legislation on its face does not provide for any residual discretion in the Minister to enable a late appellant who has been declared no longer to be an applicant, do considerations of constitutional construction enable such a discretion or does the legislation bind, to the exclusion of any executive power of the State, the Minister into the decision to remove applicant status and thus bar any appeal to the IPAT?

The statutory lock

2 A person arriving in Ireland who claims that he or she is a refugee or that their country of origin is in such a state of chaos that they are entitled to subsidiary protection against serious violence will first apply to the International Protection Office. The applications in these cases exemplify what is involved. In one case a claim of a neighbourhood dispute resulted in a man leaving for Ireland, with his wife remaining apparently to see a child through education. In the other, a dispute at work led to claims of general threat. Both applications were examined by the IPO and were rejected. Neither applicant appealed, which is an absolute right, to the IPAT. As to what the excuses might be, that is perhaps best left aside as these have nothing to do with this appeal. What is established as a certainty is that upon refusal, an applicant, under s 41, may appeal in writing, giving grounds of appeal, and may seek an oral hearing. The time limits are prescribed by the Minister through regulations made under s 77 of the Act. An appeal is required if someone is to remain in the system as an applicant, since as s 41(2)(b) provides, that step must be taken “within such period from the date of the sending to the applicant of the notification under section 40 as may be prescribed under section 77”. Section 41(4) enables the Minister “having regard to the need to observe fair procedures, prescribe procedures for and in relation to appeals”. Hence, matters are governed by Statutory Instrument No. 116/2017, The International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017. The Minister need only consult the chairperson of IPAT to make or to revise the time limits. As the Regulations now stand, Article 3(c) states thst an applicant who fails before the IPO has “15 working days, for the purposes of section 41(2)( a)” to appeal to IPAT. But, ostensibly, being outside that may enable readmission since IPAT may extend time where an “applicant has demonstrated that there were special circumstances as to why the notice of appeal was submitted after the prescribed period had expired” and that “in the circumstances concerned, it would be unjust not to extend the prescribed period.”

3 Notwithstanding that the Act has replaced and revised the basic ground rules of several pieces of legislation, and that it is now no longer necessary to have applied and to have been refused refugee status before making a claim for subsidiary protection, and that the legislation strives for comprehensiveness, there are always teething problems. This present case is one such problem. Other than genuine issue, it is the duty of legal representatives to make this legislation work smoothly and inventive arguments contrary to its terms should be disposed of.

4 The statutory lock is argued by the applicants to arise, for the purpose of making a consequent argument as to unconstitutionality, in consequence of s 2(2). There has to come a point where a person is no longer entitled to make a claim that they should be given international protection in Ireland. Logically, that would arise where their claims have been decided to be unfounded, or lacking credibility, and where any appeal has been disposed of, or where they have left the country or just decided that their claims are so wanting in merit that they give up. Legislatively, that removal of any status that comes from being an applicant for international protection comes from s 2(2) which provides that a “person shall cease to be an applicant on the date on which” the Minister refuses “to give the person a refugee declaration” or “subsidiary protection” or is given general leave to remain or on finding out that they have already applied in another Member State of the European Union, the person “is transferred from the State in accordance with the Dublin Regulation.” By failing to appeal a finding of the IPO, either within the time limits for appeal or by not attending a hearing without proffering an excuse, a person may be deemed to have withdrawn the appeal and hence will no longer be an applicant under s 2(2). In this respect, the analysis of Barrett J is unimpeachable. This is as stated in the letter written to one of the applicants, to the effect that “[t]he recommendation under s.39 has been superseded by the Minister's decision under s.47 such that an appellant no longer has a recommendation simpliciter under s.39 against which to appeal.” The logic being that the IPO has recommended that an applicant not be given refugee status and the time for appeal being up, the process is come to an end.

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