NO v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 24 November 2016 |
| Neutral Citation | [2016] IEHC 735 |
| Docket Number | [2011 No. 474 JR] |
| Court | High Court |
| Date | 24 November 2016 |
[2016] IEHC 735
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2011 No. 474 JR]
Asylum, Immigration & Nationality – Art. 47 of the Charter of Fundamental Rights of the European Union – Refusal to grant subsidiary protection – Council Directive 2005/85/EC – Right of effective remedy – Judicial review versus right of appeal
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent for refusing to grant the applicant's application for subsidiary protection. The applicant contended that she was not afforded an effective remedy in the form of full appeal against the impugned decision and thus, it was contrary to art. 47 of the Charter of Fundamental Rights of the European Union (Charter). The first name respondent contended that the proceedings had become moot as the applicant had already been deported to the country of origin and she had been residing there ever since.
Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the lack of right of appeal against the decision to refuse subsidiary protection was not a denial of right of an effective remedy as the applicant could bring fresh evidence to return to asylum process under s. 17 (7) of the Refugee Act 1996. The Court agreed with the dicta of the Court of Appeal in N.M. v Minister for Justice Equality & Law Reform 2016 IECA 217, that internal review procedures adopted by the first named respondent did not provide an effective remedy as envisaged under art. 39 of the Directive 2005/85. The Court, however, held that art. 39 of the said Directive did not apply to the subsidiary procedure. The Court refused to decide the issue of mootness on the basis of lack of appropriate information.
The applicant is seeking an order of certiorari to quash the decision of the first named respondent refusing to grant the applicant subsidiary protection on 28th March, 2011 and is grounded upon the affidavit of the applicant of 9th June, 2011.
The grounds of the application are to the effect that there was a failure in the procedure at the relevant time to provide an effective remedy in the form of a full appeal against the first named respondent's decision aforesaid in accordance with Article 47 of the Charter of Fundamental Rights of the European Union, thereby rendering the decision invalid. The applicant also relies upon the principle of equivalence.
The applicant is a Nigerian national. She married in July, 1999. The applicant is a pharmacist and her husband is a solicitor.
The applicant left her home in Lagos in June, 2006 because she was then pregnant with triplets, although at the time believing it to be twins, and because of fear that her mother would force her to permit a ritual to be performed on her babies when they were born. The applicant herself was a twin and this ritual was performed on herself and her twin sister however her twin sister died in infancy. The applicant's children were born in Ireland in September, 2006.
The applicant was refused refugee status both before the Commissioner and thereafter before the RAT. She subsequently applied for subsidiary protection; however, in accordance with the procedure at that time the Minister dealt with this application on a papers only basis and rejected her application on 28th March, 2011. There was no appeal process available. A deportation order was signed on 21st April, 2011. In March, 2012 the applicant and her children were deported. The youngest children were then aged 6 years old.
On 10th June, 2010 the applicant sought leave to apply for judicial review in respect of the refusal of subsidiary protection and the making of the deportation order.
This application came before the High Court for hearing on 13th October, 2011 before Ryan J. who refused her application.
The order of Ryan J. was appealed to the Supreme Court by notice of appeal of 7th January, 2013 (the order of Ryan J. was not perfected until 18th December, 2012).
On 24th January, 2014 the respondents applied to the Supreme Court to dismiss the proceedings on the grounds of mootness. However it appears that following full argument this application was rejected.
On 15th February, 2016 the Supreme Court allowed the appeal. When the matter came back before the High Court on 11th April, 2016 the applicant was granted liberty to pursue the application for certiorari against the decision of the first named respondent on 28th March, 2011 based upon the argument under Article 47 aforesaid and on the basis of a breach of the principle of equivalence. At the hearing of the matter before this Court, the applicant accepted that as a consequence of the decision in the case of Danqua ( Case C-429/15) the principle of equivalence is not relevant, as it was held that both the application for asylum and an application for subsidiary protection concerned two types of application both based on EU law and therefore invoking the principle of equivalence was irrelevant.
In the applicant's submissions, it is suggested that the principle of effectiveness would support the applicant's claim to quash the decision of the first named respondent, notwithstanding that it does not appear that this was one of the grounds afforded to the applicant. That having been said, I do note that at para. 29 of the Danqua judgment, it was held that it was for the domestic legal system of the member state to determine the procedural requirements in respect of an application for subsidiary protection, provided that those requirements do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legislation. This point was not developed in any great detail on behalf of the applicant as a ground to review the order of the first named respondent independently of the protection afforded by Art. 47 of the Charter of Fundamental Rights.
In the events I am satisfied that the matter falls to be determined under Art. 47.
Part of the basis on which the respondent wishes to resist the application on the part of the applicant involves mootness/futility of proceedings. The respondent argues that the applicant and her children were returned to Nigeria in March, 2012 and there is no additional information, notwithstanding requests on behalf of the respondent, from the applicant as to whether or not the fear of the applicant was realised on her return. Further, given that the applicant is now residing in her home in Nigeria for in excess of four and a half years the issue raised by her in the proceedings have effectively fallen away.
I have not been furnished with any documents, pleadings or submissions in respect of the application before the Supreme Court brought by the respondents in January, 2014 seeking to dismiss the proceedings on the basis of mootness. That having been said, it appears that both parties acknowledge that the application was rejected by the Supreme Court following a full argument. In addition, I am advised by counsel for the applicant that in a portion of the Supreme Court judgment in respect of the application of the respondent, the Supreme Court refused the relief notwithstanding that the applicant had been deported four years earlier. This of course is not accurate as in 2014 the applicant was residing in Lagos for two years following the deportation. Nevertheless, on the basis that the Supreme Court appears to have rejected the argument of mootness based upon the belief that the applicant had returned to Nigeria four years earlier, and further, given the lack of information available to me at this time relative to the application before the Supreme Court, I do not intend to seek to resolve the matter on the basis of mootness.
Counsel Directive 2005/85/EC, dated 1st December, 2005 is a directive on minimum standards on procedures in member states for granting and withholding refugee status. This directive includes, at Chapter 5, Article 39. This provides that member states shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against one or more of the enumerated grounds including a decision taken on their application for asylum. The applicant accepts in submissions that a subsidiary protection application is not one of the enumerated grounds mentioned in Art. 39.
Article 47 of the Charter aforesaid provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Although reference is made in Art. 39 of the 2005 Directive to ‘before a court or tribunal’ and reference is made in Art. 47 of the Charter to ‘before a tribunal’, nevertheless for the purposes of the within application I am satisfied that any interpretation of Art. 39 of the Directive by the courts will, absent special circumstances, apply to...
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...for granting and withdrawing international protection), which does not apply to Ireland (see N.O. v. Minister for Justice and Equality [2016] IEHC 735 (Unreported, O'Regan J., 24th November, 2016). Such a procedure unquestionably constitutes an effective remedy (see also Balc v. Minister fo......