M(P) v Minister for Justice, and Law Reform & others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 34
• Court: High Court
• Date: 31 January 2012

[2012] IEHC 34

THE HIGH COURT

[No. 147 J.R./2011]

M (P) [Botswana] v Min for Justice & Ors (No 2)

BETWEEN/

PM (BOTSWANA)

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND (No.2)

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

M (P) v MIN FOR JUSTICE UNREP HOGAN 28.10.2011 2011 IEHC 409

EEC DIR 2005/85 ART 39(1)

WILSON v ORDRE DES AVOCATS DU BARREAU DE LUXEMBOURG 2007 AER (EC) 403 2006 ECR I-8613 2007 1 CMLR 7

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

D (HI) (A MINOR) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 9.2.2011 2011 IEHC 33

EEC DIR 2005/85 ART 39

DIOUF v MINISTRE DU TRAVAIL 2012 1 CMLR 8

EFE & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 7.6.2011 2011 2 ILRM 411 2011 IEHC 214

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3.1

ARTICLE 26 OF THE CONSTITUTION & SECTION 5 & SECTION 10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING BILL) 1999, IN RE 2000 2 IR 360

CONSTITUTION ART 34.1

CONSTITUTION ART 34.3.1

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

U (MA) & ORS v MIN FOR JUSTICE (NO 3) UNREP HOGAN 22.2.2011 2011 IEHC 59

IMMIGRATION LAW

Deportation

Appeal - Certificate to appeal to Supreme Court - Adequacy of judicial review proceedings - Right to effective remedy - Obligation to vindicate personal rights - Institutional guarantees - Point of law of exceptional public importance - Desirable in public interest - Proper interpretation of requirements of effective remedy in article 39 - International protection - Whether denied effective remedy - Whether Refugee Appeals Tribunal lacked institutional guarantees - Whether judicial review inadequate method of challenging international protection decisions - Whether certificate should be granted - M(P) v Minister for Justice and Law Reform [2011] IEHC 409, (Unrep, Hogan J, 28/10/2011); Wilson (Case C-506/04) [2006] ECR I-8613; D(HI)(A minor) v Refugee Applications Commissioner [2011] IEHC 33 (Unrep, HC, Cooke J, 9/2/2011); Diouf v Ministre du Travail, de l'Emploi et de l'Immigration (Case C-69/10) (Unrep, 28/7/2011); Efe v Minister for Justice [2011] IEHC 214, [2011] 2 IR 798; Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke, 17/12/2010), Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 and U(MA) v Minister for Justice (No 3) [2011] IEHC 59, (Unrep, Hogan, 22/2/2011) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5(3)(a) - Refugee Act 1996 (No 17) - Constitution of Ireland 1937, Arts 40.3.2 and 40.3.1 - Directive 2005/85/EC, art 39(1) - Certificate not granted (2011/147JR - Hogan J - 31/1/2012) [2012] IEHC 34

M(P)(Botswana) v Minister for Justice and Law Reform

Facts: The applicant sought a certificate for leave to appeal to the Supreme Court alleging that the Refugee Act 1996 was ultra vires the provisions of Article 39 of Procedures Directive 2005/85/EC, on the basis that no effective remedy had been provided against the decision of the Minister to refuse the applicant a declaration of refugee status. The applicant claimed that the Refugee Appeals Tribunal lacked institutional guarantees of independence and impartiality.

Held by Hogan J. that it was not desirable in the public interest that an appeal should be taken to the Supreme Court. The law had been clarified in a series of decisions.

Reporter: E.F.

1 1. The applicant, Ms. M., is a Botswanian national who was notified on 5 ^th February 2011 that she was now subject to a deportation order which had been made by the Minister. A few weeks earlier the Minister had refused her applications for refugee status and for subsidiary protection. On 6 ^th December, 2009, the Refugee Appeal Tribunal had affirmed the recommendation of the Office of the Refugee Applications Commissioner that she be refused refugee status. Neither the decision of the Tribunal nor that of the Commissioner have ever been challenged in judicial review proceedings.

2 2. Following the delivery of my judgment in respect of Ms. M's application whereby I refused to grant her leave to apply for judicial review (save that, as we shall presently see, I adjourned one aspect of that application), Ms. M. has now applied for a certificate for leave to appeal to the Supreme Court pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act"). In that judgment ( M v. Minister for Justice and Law Reform [2011] IEHC 409) I rejected the argument that the Refugee Act 1996 ("the 1996 Act") was ultra vires the provisions of Article 39(1) of the Procedures Directive 2005/85/EC on the basis that no effective remedy has been provided against the decision of the Minister to refuse the applicant a declaration of refugee status.

3 3. The essence of the applicant's case is that she has been denied an effective remedy by reason of (i) the lack of institutional guarantees in respect of the independence and impartiality of the Refugee Appeal Tribunal and (ii) the inadequacy of the remedy of judicial review as means of challenging administrative decisions in relation to international protection.

Lack of institutional guarantees

4 4. The essence of Ms. M.'s claim in respect of the lack of institutional guarantees is that she has been denied an effective remedy in respect of her appeal from the Office of the Refugee Applications Commissioner to the Refugee Appeal Tribunal on the ground that the latter body lacks the basic institutional guarantees of independence and impartiality. It is clear from the decision of the Court of Justice in Wilson Case C-506/14 [2006] E.C.R. I -8613 that an appeal to a body which lacked such guarantees might well involve an infringement of the right to an effective remedy.

5 5. This, however, is perhaps just another way of expressing the point which is the subject of a reference from this Court (Cooke J.) to the Court of Justice pursuant to Article 267 TFEU in D and A v. Refugee Applications Commissioner [2011] IEHC 33. As I indicated at the conclusion of the first judgment, I adjourned this aspect of the application pending the outcome of the reference. Even if the Court of Justice finds for the applicants in that case, it does not necessarily follow that this applicant will be entitled to avail of that decision given in particular that she did not raise the point at the time.

Conclusions

6 6. Beyond noting this point, it would be premature to offer any further views one way or the other. This aspect of the case will simply have to await the outcome of the reference in D and A. As this aspect of the leave application remains adjourned, the question of a certificate simply does not arise at this juncture. We can now proceed to consider the other aspect of the case.

The adequacy of judicial review proceedings

7 7. This application for a certificate effectively obliges the Court to consider afresh the implications of Article 39 of the Procedures Directives for present judicial review practice and the asylum process so far as the adequacy of the remedy of judicial review is concerned. There has been one extremely important development since the initial application for leave was first argued, as the extent of a Member State's obligations under Article 39 has been subsequently fully examined by the Court of Justice in Case C-69/10 Diouf (2011). It seems appropriate to examine the implications of that decision in a little detail.

8 8. In that case, the applicant, a Mauritanian national without a legal right of residence in Luxembourg, had found that his application for asylum had been rejected under an accelerated procedure. The relevant Luxembourg law at the time had provided that the Minister's decision to invoke the accelerated procedure rule could not be challenged in judicial proceedings. The applicant maintained that the existence of such a provision was contrary to the effective guarantee requirement contained in Article 39 of the Procedures Directive.

9 9. The Court stressed (at paragraph 29 of the judgment) that the procedures guaranteed by the Procedures Directive were minimum standards and that:

"the Member States have, in a number of respects, a margin of appreciation with regard to the implementation of those provisions in the light of the particular features of national law."

10 10. The Court proceeded to hold that procedural decisions - such as the decision to invoke the accelerated procedure - were not themselves directly within the ambit of Article 39 itself. The Court added, however, the following important provisos (at paragraphs 56-58):

2 "56. Accordingly, the absence of a remedy at that stage of the procedure...