Danqua v Minister for Justice and Equality (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 06 February 2017
• Neutral Citation: [2017] IECA 20
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 20 of 2014],Neutral Citation Number: [2017] IECA 20
• Date: 06 February 2017

BETWEEN/

EVELYN DANQUA

PPELLANT

- AND –

MINISTER FOR JUSTICE AND EQUALITY (NO. 2)

RESPONDENTS

[2017] IECA 20

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 20

Record No. 2014/20CA

THE COURT OF APPEAL

Immigration and asylum – Subsidiary protection – Time limit – Appellant seeking subsidiary protection – Whether the Court of Appeal was bound to give effect to the decision of the Court of Justice

Facts: The appellant, Ms Danqua, a Ghanaian national, made a belated application for subsidiary protection on 8th October 2013, having first applied for refugee status in 2010 and having been refused asylum following a decision of the Refugee Appeal Tribunal in January 2011. By decision dated 5th November 2013 the respondent, the Minister for Justice and Equality, refused to entertain this belated application for subsidiary protection, contending that she had not made the application within the 15 day time period which had been prescribed in correspondence with her. In the judicial review proceedings which then ensued, Ms Danqua maintained that the 15 day time limit infringed the principle of equivalence because no similar time limit is contained in respect of refugee applications. The appellant also maintained that the decision to refuse to extend time to allow for an application of this kind was unreasonable in law, specifically, because the Minister's refusal to entertain the late application was predicated on the factual assumption that she had made a conscious decision not to apply for subsidiary protection at the time in February/March 2011, when this was not, in fact, the case. The appellant's contentions were rejected in a reserved judgment delivered by MacEochaidh J in the High Court on 16th October 2014 ([2014] IEHC 456). The appellant's appeal was then heard by the Court of Appeal and in a reserved judgment delivered on 10th June 2015, the Court decided to make a reference to the Court of Justice pursuant to Article 267 TFEU ([2015] IECA 118). On 20th October 2016, the Court of Justice first held that the principle of equivalence did not apply. The Court then held that it was entitled to re-formulate the referred question, the practical effect of which was that the Court was then free to address the question of effectiveness, even though it had not formed any part of the proceedings to date. Counsel for the State argued at the resumed hearing that the conclusions of the Court of Justice on the effectiveness question were not binding and need not be followed by the Court of Appeal.

Held by Hogan J that the Court of Appeal was bound to give effect to the decision of the Court of Justice; the effect of that decision was to hold unambiguously that the 15 working day time limit governing applications for subsidiary protection violated the EU principle of effectiveness. In light of that decision Hogan J held that the Court was accordingly obliged to suspend the operation of the 15 day rule so that it could no longer provide the legal basis for any administrative decision which had previously sought to apply that rule on the premise that it was of full force and effect. Hogan J held that the Minister's decision was based upon a rule which had been conclusively adjudicated to be contrary to EU law; it followed in turn that the Minister's decision of 5th November 2013 which refused to permit the applicant to make an application for subsidiary protection on that ground must be quashed.

Hogan J held that he would allow the appeal and grant the appropriate order of certiorari.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 6th day of February 2017

1 To what extent should this Court regard itself as bound by a judgment delivered by the Court of Justice of the European Union in respect of an Article 267 TFEU reference when that Court has been pleased to answer a question not posed by the referring court and when the issue in question to which the answer refers had not previously been raised in the domestic proceedings? This is the issue which now arises for consideration by this Court following the decision of the Court of Justice of the European Union on 20th October 2016 which in turn followed a reference from this Court: see C-495/15 Danqua v. Minister for Justice and Equality EU:C:2016:789. The issue arises in the following way.

2 In the present case the applicant, Ms. Evelyn Danqua, (who is a Ghanaian national), made a very belated application for subsidiary protection on 8th October 2013, having first applied for refugee status in 2010 and having been refused asylum following a decision of the Refugee Appeal Tribunal in January 2011. By decision dated 5th November 2013 the Minister for Justice and Equality refused to entertain this belated application for subsidiary protection, contending that she had not made the application within the 15 day time period which had been prescribed in correspondence with her. It should be stated that the 15 day time period does not have a legislative basis, but is rather one which has been administratively imposed.

3 In the judicial review proceedings which then ensued, Ms. Danqua maintained that the 15 day time limit infringed the principle of equivalence because no similar time limit is contained in respect of refugee applications. The twin principles of equivalence and effectiveness are fundamental principles of EU law which serve to act as a break on the national procedural autonomy which Union law accords to national legal systems. The principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on national law. The principle of effectiveness, on the other hand, seeks to ensure that a national procedural rule does not render it either impossible in practice or excessively difficult to exercise rights conferred by the EU legal order. It is important to stress that the applicant challenged the 15 day rule only by reference to the principle of equivalence. It was never contended that this rule infringed the principle of effectiveness, a point to which I shall presently return.

4 The applicant also maintained that the decision to refuse to extend time to allow for an application of this kind was unreasonable in law, specifically, because the Minister's refusal to entertain the late application was predicated on the factual assumption that she had made a conscious decision not to apply for subsidiary protection at the time in February/March 2011, when this was not, in fact, the case.

5 The applicant's contentions were rejected in a reserved judgment delivered by MacEochaidh J. in the High Court on 16th October 2014: see ED v. Minister for Justice and Equality [2014] IEHC 456. The applicant's appeal was then heard by this Court and in a reserved judgment delivered on 10th June 2015, the Court decided to make a reference to the Court of Justice pursuant to Article 267 TFEU: see Danqua v. Minister for Justice and Equality [2015] IECA 118. I propose to consider presently the terms of that Article 267 reference, but I will for convenience refer to that judgment of this Court as 'the first judgment'.

6 The full circumstances of Ms. Danqua's case are set out in that first judgment. In summary, Ms. Danqua is now 52 years of age and she originally applied for refugee status in the State on 30th April 2010, claiming that she was a potential victim of what is known as the Trokosi system. This is a well documented practice which subsists in certain parts of Ghana whereby family members – usually female teenagers – are pledged by other family members for indentured service at a local pagan shrine in order to atone for the past deeds of the family. The pledged family members (the Trokosis) are required to help with the upkeep of these shrines and often fall prey to sexual predation at the hands of the fetish priests and local tribal chiefs.

7 Ms. Danqua's application was, however, refused on credibility grounds by a decision of the Refugee Application Tribunal by decision dated 13th January 2011. The applicant was legally represented before the Tribunal by the Refugee Legal Service ('RLS') and she did not seek to challenge the decision of the Tribunal by way of judicial review proceedings.

8 The Minister subsequently issued a proposal to deport Ms. Danqua on 9th February 2011 but that letter also outlined her various options including her right to apply for a subsidiary protection and also to apply for humanitarian leave to remain. In that information leaflet she was informed:

'if you do not apply for subsidiary protection at the same time as you make representations under s. 3 of the Immigration Act 1999 (as amended) such an application will not be considered at a later date.'

9 As it happens, no such subsidiary protection application was received at the time. Ms. Danqua herself is functionally illiterate and she spoke little English at the time of her arrival in the State. Following the adverse decision of the Tribunal the RLS informed Ms. Danqua that it did not consider that they were any substantial grounds as would warrant a subsidiary protection application. It later emerged that the RLS had a practice of not representing applicants in respect of subsidiary protection applications where their original asylum application had failed on credibility grounds.

10 However, on 1st March 2011 the RLS did, in fact, make an application on Ms. Danqua's behalf for humanitarian leave to remain. Some two and a half years later on 23rd September 2013 Ms. Danqua was informed that a deportation order had, in fact, being signed on 17th September 2013 and that her application for humanitarian leave to remain had been refused. By this stage, however, Ms. Danqua had found a new set of private solicitors who were prepared to act for her. On 8th October 2013 her new solicitors sought to...