Danqua v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 10 June 2015
• Neutral Citation: [2015] IECA 118
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 2014/20CA
• Date: 10 June 2015

[2015] IECA 118

THE COURT OF APPEAL

Peart J.

Irvine J.

Hogan J.

Record No. 2014/20CA

Between

Evelyn Danqua

Appellant

and

Minister for Justice, Equality and Law Reform

Respondent

Immigration and asylum – Refugee status – Subsidiary protection – Appellant seeking subsidiary protection – Whether time limit infringes principle of equivalence

Facts: The appellant, Ms Danqua, is a Ghana national. She applied for refugee status in Ireland in April 2010, claiming that she was a potential victim of the Trokosi system. Her application was refused on credibility grounds by a decision of the Refugee Application Tribunal in January 2011. In March 2011 the Refugee Legal Service made an application for humanitarian leave to remain. In September 2013 Ms Danqua was informed that a deportation order had been signed and that her application for leave to remain had been refused. In October 2013 her new solicitors sought to submit an application for subsidiary protection and to revoke the deportation order. This application was not successful. The respondent, the Minister for Justice, Equality and Law Reform, contended that she had not made the application within the 15 day time period. The applicant maintained that the time limit infringes the principle of equivalence because no similar time limit is contained in respect of refugee applications. The Minister responded by saying that even if applications for asylum and subsidiary protection are regarded as equivalent, there is still no breach of this principle, because asylum applications are governed almost exclusively by EU law, so that there is no question of the differing treatment of applicants relying on the EU law right (subsidiary protection) being disadvantaged in terms of time limits by comparison with an equivalent remedy governed by domestic law. Ms Danqua also maintained that the decision to refuse to extend time to allow for an application of this kind is also unreasonable in law, specifically, because the Minister"s refusal to entertain the late application was predicated on the factual assumption that the applicant 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 applicant"s contentions were rejected in a reserved High Court judgment. She then appealed to the Court of Appeal.

Held by Hogan J that, having considered C-604/12 HN v Minister for Justice, Equality and Law Reform [2014] ECR I-000, applications for asylum on the one hand for subsidiary protection on the other are sufficiently close comparators so far as this dimension of the principle of equivalence is concerned. Hogan J held that whereas most applications for asylum are governed by EU law, Member States nonetheless retain their own jurisdiction to grant asylum in appropriate cases, as made expressly clear by Article 3 of Directive 2004/83/EC (the Qualification Directive). As the issues of EU law presented were held by Hogan J to be substantially similar in principle to those at issue in FA (Iraq) [2011] 4 All ER 503, it seemed appropriate to him that the Court should make a reference pursuant to Article 267 TFEU to the Court of Justice. He considered that this step is required because should it transpire that the 15 day administrative time limit which the Minister imposed in respect of the application for subsidiary protection is indeed contrary to EU law as breaching the equivalence principle, the second question (namely, the reasonableness of the Minister"s decision to refuse to extend time) simply does not arise, as there would no longer be any formal time limit.

Hogan J held that the appeal should be adjourned pending a reference to the Court of Justice of the European Union pursuant to Article 267 TFEU on the following questions: 1) Can an application for asylum, which is governed by domestic legislation which reflects a Member State"s obligations under the Qualification Directive, be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence?; 2) if the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection(i) has been imposed simply administratively and (ii) that the time limit serves important interests of ensuring that applications for international protection are dealt within a reasonable time? The Court also invited the parties to make such further submissions in respect of these draft questions as they considered appropriate.

Appeal adjourned.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 10th day of June 2015

1 In the absence of a specific requirement imposed by European Union law, the principle of national procedural autonomy permits each Member State to determine for itself the conditions by reference to which the rights and remedies thereby conferred by EU law will be enforced. It is by now well established that the principle of national procedural autonomy is subject to the twin requirements of effectiveness and equivalence.

2 It is the latter principle which is potentially engaged in the present case. The basic principle remains that articulated by the Court of Justice in Case 33/76 Rewe-Zentralfinanz AG v. Landwirtschaftskammer fûr das Saarland [1976] E.C.R. 1989:

'Applying the principle of cooperation laid down in Article 5 of the [EC] Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.

Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature.'

3 In the present case the applicant (whose circumstances I will shortly describe) made a very belated application for subsidiary protection in 2013, having first applied for refugee status in 2010 and having been refused asylum in February 2011. The Minister 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. The evidence before the Court was that the 15 day time period was frequently extended in other cases on a case by case basis.

4 The applicant maintains that the 15 day time limit infringes the principle of equivalence because no similar time limit is contained in respect of refugee applications. She also maintains that the decision to refuse to extend time to allow for an application of this kind is also unreasonable in law, specifically, because the Minister's refusal to entertain the late application was predicated on the factual assumption that the applicant 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.

6 Before considering any of these questions it is first necessary to set out the relevant facts.

The circumstances in which the applicant came to make an application for asylum

7 The applicant, Ms. Danqua, is a 50 year old national of Ghana. She 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.

8 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 Tribunal concluded that given her age, Ms. Danqua, did not match the profile of those who were subjected to the Trokosi practice and, for this and other reasons, the application was refused. The applicant was legally represented before the Tribunal by the Refugee Legal Service and she did not seek to challenge the decision of the Tribunal by way of judicial review proceedings.

9 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.'

10 As it happens, no such subsidiary protection application was received for reasons that will shortly be set out. By way of background, it should be noted that the applicant herself is functionally illiterate and she spoke little English at the time of her arrival in the State. It also appears from an...