H.I.D. v Refugee Applications Commissioner

JudgeMr. Justice Cooke
Judgment Date22 March 2013
Neutral Citation[2013] IEHC 146
CourtHigh Court
Date22 March 2013
B. A.

[2013] IEHC 146

[2008 No. 1261 J.R.] [2009 No. 56 J.R.]

Refugee law - European Union law - practice and procedure - Court or Tribunal - Refugee Appeals Tribunal - Article 267 TFEU - Court or Tribunal - Council Directive 2005/85/EC

Facts: The Court of Justice in January 2013 had given its judgment in Case C-175/11 HID and BA v. Refugee Applications Commission pursuant to questions referred in 2011 pursuant to Article 267 TFEU. The Court had referred questions relating to the legality of administrative measures adopted for the examination of asylum pursuant to an accelerated procedure and the compatibility of the role and function of the Refugee Appeals Tribunal with the requirement of an effective remedy that had to be provided, pursuant to Article 39 Council Directive 2005/85/EC. The Court of Justice had decided in its judgment that the Irish legislation was not precluded under EU law. The High Court considered whether the RAT could be regarded as the final decision within the meaning of the Directive and whether it was a Court or Tribunal within the meaning of Article 267 TFEU, concerning its independence and the Ministerial powers of removal of members. The question of delay was also raised.

Held by Cooke J. that the two issues raised were important and it was agreed to have been expedient for the Court to make a reference pursuant to Article 267 TFEU as an alternative to the Supreme Court appeal. The Court of Justice had fully answered all the questions raised and leave to appeal would be refused. There would be no order made as to costs.

Mr. Justice Cooke
JUDGMENT of Mr. Justice Cooke delivered the 22nd day of March 2013

On the 31st January, 2013, the Court of Justice of the European Union gave its judgment in case C-175/11HID and BA v. Refugee Applications Commissioner and Others furnishing its replies to the two questions referred to it by this Court for preliminary ruling in its reference dated the 8th April, 2011, under Article 267 TFEU.


That reference for preliminary ruling was made in the context of an application made to the Court on behalf of the applicants for a certificate pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, for leave to appeal to the Supreme Court against the judgment of the Court given jointly in these two cases on the 9th February, 2011. The reference for preliminary ruling, which had been discussed by the Court with the parties and agreed by them, referred two questions; the first of which concerned the legality of administrative measures adopted for the examination and determination of applications for asylum pursuant to an accelerated procedure adopted for classes of application defined on the basis of nationality or country of origin. The issues raised under the heading of that question are no longer relevant.


The second question concerned the compatibility of the role and functions of the Refugee Appeals Tribunal (RAT) with the requirement that an ‘effective remedy’ be provided in national law by way of appeals against the first instance determinations of asylum applications by the Office of the Refugee Applications Commissioner (ORAC) as provided by Article 39 of Council Directive 2005/85/E.C. of the 1st December, 2005, (‘the Directive’). The full text of the question referred by the High Court was as follows:-

‘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 applications 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 the 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]?’


The ruling given by the Court of Justice in its judgment on the second question was expressed in these terms:

‘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 subject to an appeal to the Supreme Court (Ireland).’


It is important to recall that what is before the Court at this stage remains the application by the applicants for a certificate for leave to appeal, this Court having given its substantive decision on all of the issues in the two cases in its judgment of the 9th February, 2011. Notwithstanding the apparent direct and complete response on the part of the Court of Justice to the second question as referred to it by this Court, counsel for the applicants maintains that there remain outstanding points of law which constitute the basis for the grant of that certificate.


The criteria which must be met for the grant of leave to appeal are not in dispute. Leave can only be granted pursuant to s.5(3)(a) of the Act of 2000 ‘where the High Court certifies that its decision involves a point of law for exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court’. The manner in which those criteria are to be approached and applied has been considered in numerous judgments both in relation to s. 5 and in the context of the analogous provision of the planning code. (See for example the judgments in Glencree Teo v. An Bord Pleanála [2006] I.E.H.C. 250; Arklow Holidays Limited v. An Bord Pleanála [2008] I.E.H.C. 2; Raiu v. RAT (Unreported, Finlay Geoghegan J. High Court, 26th February, 2003). This Court reviewed the law in relation to the criteria in its judgment of the 26th November, 2009, in I.R. v. Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 353 and endeavoured to distil the salient points of principle in these terms:-

‘- It is not enough that the case raises a point of law: it must be one of exceptional importance;

- The jurisdiction to grant a certificate must be exercised sparingly;

- The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases;

- The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the proposed appeal or in appraising the strength of the appellant”s arguments;

- The point of law must arise out of the Court”s decision and not merely out of some discussion at the hearing;

- The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements.’


Although no formulated point of law has been put forward on behalf of the applicants as the basis upon which the Court might grant the certificate, it is argued that a number of issues still remain arising out of the Court”s original judgment having regard to the particular basis upon which the Court of Justice has given its reply. The principal submission made in this regard, as the Court understands it, is based upon a reading of the judgment of the Court of Justice according to which it is only by reference to the totality of the remedies available in the administrative and judicial system of the State when taken as a whole, that the RAT can be taken as providing an ‘effective remedy’ of the kind required by Article 39 of the Directive.


More precisely, it is argued that, contrary to the approach which had been adopted by this Court in its substantive judgment and to the position of the respondents, the Court of Justice has ruled that it is the availability of an appeal by way of judicial review to the High Court coupled with the possibility of further appeal to the Supreme Court that renders the remedy an effective one. This they submit, has the necessary consequence that the adjudication by the RAT can no longer be regarded as the ‘final decision’ within the meaning of Article 2(d) of the Directive. Accordingly, if judicial review forms part of the remedy required to be available for the purposes of Chapter V and Article 39 of the Directive, the ‘final decision’ cannot be taken as having been made on an asylum application until such time as the judicial review remedy has been exhausted.


In the judgment of the Court, this argument is unfounded and is based upon a mistaken reading of the judgment of the Court of Justice.


The ruling on the second question is contained in the judgment at paras. 78 to 105. The Court points out that...

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