N.M (DRC) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 14 July 2016
• Neutral Citation: [2016] IECA 217
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 296 of 2015],2015 No. 296
• Date: 14 July 2016

[2016] IECA 217

THE COURT OF APPEAL

Hogan J.

2015 No. 296

Peart J.

Irvine J.

Hogan J.

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGATION ACT 1999, E.U. COUNCIL DIRECTIVE 2005/85, S.I. 51 OF EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGULATIONS 2011 AND SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN /

N. M. (DRC)

APPLICANT/RESPONDENT

– AND –

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT/APPELLANT

Immigration and asylum – Refugee status – Judicial review – Appellant seeking to appeal against the decision of the High Court – Whether the procedure set out in the European Communities (Asylum Procedures) Regulations 2011 is lawful having regard to the provisions of the Procedures Directive

Facts: The respondent is a national of the Democratic Republic of Congo (?DRC?) who arrived in Ireland and made a claim for asylum on 25th April 2008. She had contended that she was of Rwandan parentage and that by reason of an allegation of espionage she was at risk from the authorities in the DRC. The Refugee Applications Commissioner refused her application and the Refugee Appeals Tribunal subsequently upheld that decision on 18th February 2011. The appellant, the Minister for Justice, Equality and Law Reform, subsequently refused her a declaration of refugee status pursuant to s.17 of the Refugee Act 1996. On 30th March 2011 the respondent then applied to the Minister for subsidiary protection, claiming that she was at risk of torture and inhuman and degrading treatment in the DRC. The Minister refused this application and in September 2011 a deportation order was made against her. The respondent made an application pursuant to s. 3(11) of the Immigration Act 1999 seeking the revocation of the order. In October 2012 the respondent sought re-admission to the asylum process pursuant to s.17 (7) of the 1996 Act on the ground that she was a refugee?sur place. Her contention in that regard was that, based on contemporary newspaper reports (which she exhibited with her application), the DRC had a policy of ill-treating those of its citizens who had unsuccessfully applied for asylum status abroad following their return to their country of origin. The Minister refused this application for re-admission. The respondent then applied for a review of the decision which was carried out by a more senior official attached to the Ministerial Decisions unit of the Department. Following the review process a fresh adverse decision was subsequently communicated to the respondent on 7th February 2013. In the meantime, however, the respondent?s solicitors had written to the Minister contending that the review process proposed by the Minister did not accord with the provisions of Council Directive 2005/85/EC (the Procedures Directive) and, specifically, Article 39 thereof. This argument was not accepted by the Minister. The respondent then commenced judicial review proceedings in which the compatibility of the present review procedures with Article 39 of the Procedures Directive was directly put at issue. On 18th December 2014, the High Court (Barr J)?held that the internal review procedure provided by the Minister against adverse decisions at first instance refusing to admit an otherwise failed asylum seeker back into the asylum process did not comply with the effective remedy requirements of Article 39. The appellant appealed to the Court of Appeal against Barr J?s decision.

Held by Hogan J that the fact that the respondent may challenge the validity of any decision of the Minister to refuse to admit her to the asylum process in accordance with s. 17 of the 1996 Act by way of judicial review means that the State has provided her with an effective remedy within the meaning of Article 39 of the Procedures Directive. Hogan J held that the corollary of this conclusion is that the High Court must ensure that, in the words of the Court of Justice in?Case C-69/10?Diouf, the reasons which led the Minister ?to reject the application for asylum as unfounded? [must] be the subject of a thorough review by the national court.? As there is no reason why this cannot be achieved by the High Court in judicial review proceedings by reference to the?Meadows v Minister for Justice?[2010] IESC 3 principles, Hogan J held that it is clear that contemporary judicial review does indeed provide an effective remedy for the purposes of Article 39.

Hogan J held that he would allow the appeal of the Minister against the decision of the High Court.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of July 2016

1 This is an appeal taken by the Minister for Justice, Equality and Law Reform against the decision of the High Court (Barr J.) delivered on 18th December 2014: N.M. v. Minister for Justice, Equality and Law Reform [2014] IEHC 638. In that decision Barr J. held that the internal review procedure provided by the Minister against adverse decisions at first instance refusing to admit an otherwise failed asylum seeker back into the asylum process did not comply with the effective remedy requirements of Article 39 of Council Directive 2005/85/EC (?the Procedures Directive?). This appeal accordingly raises an important point of EU law concerning the interpretation and requirements of Article 39 of the Procedures Directive.

2 Before examining this legal issue, it is necessary first to set out the background to the appeal. The applicant is a national of the Democratic Republic of Congo (?DRC?) who arrived in Ireland and made a claim for asylum on 25thApril 2008. She had contended that she was of Rwandan parentage and that by reason of an allegation of espionage she was at risk from the authorities in the DRC.

3 The Refugee Applications Commissioner refused her application and the Refugee Appeals Tribunal subsequently upheld this decision on 18th February 2011. The Minister subsequently refused her a declaration of refugee status pursuant to s.17 of the Refugee Act 1996 (?the 1996 Act?). On 30th March 2011 the applicant then applied to the Minister for subsidiary protection, claiming that she was at risk of torture and inhuman and degrading treatment in the DRC. The Minister refused this application and in September 2011 a deportation order was made against her.

4 The applicant's solicitors then made an application pursuant to s. 3(11) of the Immigration Act 1999 (?the 1999 Act?) seeking the revocation of the order. In October 2012 the applicant sought re-admission to the asylum process pursuant to s.17 (7) of the 1996 Act on the ground, effectively, that she was now a refugee sur place. Her contention in this regard was that, based on contemporary newspaper reports (which she exhibited with her application), the DRC had a policy of ill-treating those of its citizens who had unsuccessfully applied for asylum status abroad following their return to their country of origin. The Minister refused this application for re-admission, but the applicant was nonetheless advised that she was entitled to a review of that decision.

5 The applicant then applied for a review of the decision which was carried out by a more senior official attached to the Ministerial Decisions unit of the Department. Following the review process a fresh adverse decision was subsequently communicated to the applicant on 7th February 2013. In the meantime, however, the applicant's solicitors had written to the Minister contending that the review process proposed by the Minister did not accord with the provisions of the Procedures Directive and, specifically, Article 39 thereof. This argument was not accepted by the Minister. The applicant then commenced the present judicial review proceedings in which the compatibility of the present review procedures with Article 39 of the Procedures Directive was directly put at issue.

6 This, accordingly, is, in outline, the background to these judicial review proceedings and to the present appeal. The key issue, therefore, is, as I have just stated, whether the procedure set out in the European Communities (Asylum Procedures) Regulations 2011 (S.I. 51 of 2011) (?the 2011 Regulations?) is lawful having regard to the provisions of the Procedures Directive and in particular Article 39 thereof. It is accordingly necessary for this purpose first to set out the relevant portions of the 1996 Act, as amended, and then to examine the relevant provisions of the Procedures Directive.

Section 17(7) of the Refugee Act 1996

7 Provision for re-admission into the asylum system was originally contained in s. 17 of the 1996 Act. Section 17 was, however, heavily amended by the 2011 Regulations, which were themselves made by the Minister pursuant to s. 3 of the European Communities Act 1972 ?for the purpose of giving further effect? to the Procedures Directive.

8 Section 17(7) of the 1996 Act (as inserted by Article 8(a) of the 2011 Regulations) provides:

?(7) A person to whom the Minister has refused to give a declaration may not make a subsequent application for a declaration under this Act without the consent of the Minister.'

9 Section 17(7A) et seq. of the 1996 Act (as inserted by Article 8(b) of the 2011 Regulations) provides:

?(7A) The consent of the Minister referred to in subsection (7):

(a) may only be given following a preliminary examination as to whether new elements or findings relating to the examination of whether the person qualifies as a refugee have arisen or been presented by the person, and

(b) shall be given if, following the preliminary examination referred to in paragraph (a), new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee.

(7B) An application for the consent referred to in subsection (7) shall be accompanied...