T D (A Minor) & D A (A Minor) v Minister for Justice and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date25 January 2011
Neutral Citation[2011] IEHC 37
Docket Number[No. 405 JR/2010]
CourtHigh Court
Date25 January 2011

[2011] IEHC 37

THE HIGH COURT

[No. 405 JR/2010]
D (T) & Ors v Min For Justice & Ors
BETWEEN/
TD, ND (A MINOR SUING BY HER MOTHER AND NEXT FRIEND TD) AND AD (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND TD)
APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S17

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

S (C) v MIN FOR JUSTICE 2005 1 IR 343

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 39

EMMOTT v MIN SOCIAL WELFARE 1991 7 ECR 4269

COTTER & MCDERMOTT v MIN FOR SOCIAL WELFARE (NO 1) 1987 ECR 1453

RSC O.84 r21

STEENHORST-NEERINGS v BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DETAILHANDEL 1995 3 CMLR 323

EEC DIR 7/97

JOHNSON v CHIEF ADJUDICATION OFFICER (NO 2) 1995 1 CMLR 725

DANSKE SLAGTERIER v BUNDESREPUBLIK DEUTSCHLAND 2009 3 CMLR 10

LEVEZ v TH JENNINGS (HARLOW POOLS) LTD 1999 2 CMLR 363

PONTIN v T-COMALUX SA 2010 2 CMLR 2

BULICKE v DEUTSCHE BURO SERVICE GMBH 2011 1 CMLR 9

RSC O.84 r21(1)

IRISH TAKEOVER PANEL ACT 1997 S13(3)(A)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

IRISH TAKEOVER PANEL ACT 1997

PLANNING & DEVELOPMENT ACT 2000 S50(2)

CMSN v IRELAND 2010 2 CMLR 42

RSC O.84A r4

IMMIGRATION

Practice and procedure

Limitation of actions - European Union - Directives - Principle of equivalence - Principle of effectiveness - Whether domestic time limit for relying on rights derived from EU directive can be relied on where directive not properly transposed into domestic law - Whether domestic time limit complies with principle of equivalence - Whether domestic time limit complies with principle of effectiveness - Emmott v Minister for Social Welfare (C-208/90) [1991] ECR I-4269 doubted; Levez v Jennings (C-326/96) [1998] ECR I-7835 applied; Commission v Ireland (C-456/08) [2010] 2 CMLR 42 and Bulicke v Deutsche Büro Service GmbH (C-246/09) [2011] 1 CMLR 9 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21, O 84A, r 4 - Environmental Protection Agency Act 1992 (No 7), s 87(10) - Refugee Act 1996 (No 17), s 17 - Irish Takeover Panel Act 1997 (No 5), s 13(3)(a) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Planning and Development Act 2000 (No 30), s 50(2) and (8) - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Procedures Directive 2005/85/EC, arts 23, 39 - Equality Directive 1979/7/EEC - Leave to apply for judicial review granted (2010/405JR - Hogan J - 25/1/2011) [2011] IEHC 37

D(T) v Minister for Justice, Equality and Law Reform

Facts The applicants had been refused refugee status in the State and had sought leave to bring judicial review proceedings against the refusal. The applicants were South African nationals and the first applicant was the mother of the second and third applicants. It was contended on her behalf that she had suffered persecution in South Africa and in particular from a local chief. The Refugee Appeals Commissioner and the Refugee Appeals Tribunal had refused the application and the Minister informed the applicants that he was refusing their application and making deportation orders in respect of all of them. Of immediate concern in this application was that the present application to challenge these decisions was well outside the 14 day time limit prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act"). The court considered this matter in the context of EU law as to whether the domestic statutory time limit complied with EU law. The applicants maintained that key aspects of the 1996 Act were incompatible with Article 23 and Article 39 of the Procedures Directive, Council Directive 2005/85/EC.

Held by Hogan J in finding the following and granting leave. No satisfactory explanation had been offered by the applicants in respect of the delay in instituting proceedings. In the ordinary way, the court would not have been prepared to grant an extension of time under s. 5 of the 2000 Act. European case-law had made it clear that a Member State was entitled to apply a national limitation period even in cases where the Member State had failed properly to transpose the relevant Directive, provided that the limitation period complied with the principles of both equivalence and effectiveness. It was compatible with Community law to lay down reasonable time-limits for bringing proceedings in the interests of legal certainty which protected both the taxpayer and the authorities concerned. The s. 5 time limit for judicial review of immigration matters was significantly shorter than the general time limit for judicial review prescribed by Order 84, rule. 21(1) Rules of Superior Courts. Section 5 of the 2000 Act did not comply with the principle of equivalence, since the 14 day period was considerably shorter than, for example, the eight weeks for judicial review as set out in s. 50(2) of the Planning and Development Act 2000 (as amended). As section 5 of the 2000 Act failed the principles of equivalence and effectiveness, it followed that the limitation provision could not be relied upon as against the applicants in so far as the claim based on the Procedures Directive was concerned.

Reporter: R.F.

Mr. Justice Hogan
1

This application for a judicial review of the decision of the Minister for Justice, Equality and Law Reform to refuse to grant the applicants refugee status in the State pursuant to s. 17 of the Refugee Act1996 raises important questions concerning the application of a domestic statutory time limit in the context of the application of EU law. The issue arises in the following way.

2

The applicants are South African nationals who arrived in Ireland in late April 2009. The first applicant is the mother of ND (who is now aged 10) and AD (who is now aged 7), the second and third applicants respectively. She claims to have suffered persecution in South Africa for reasons of race. Specifically, the applicant maintains that she was promised in marriage by her father to the son of a local chief as far back as 1988, but she actually married the husband of her choice in 1999. She further maintains that although the local chief learned of the marriage in 2000, these difficulties were only made manifest in December 2007 when she returned to her home area in Port Shepton in the Natal Province to open her own business.

3

The Refugee Appeals Commissioner ruled adversely against the application on credibility grounds on the 7th May 2009. This was affirmed by decision of the Refugee Appeals Tribunal on 15th July 2009. The Minister informed the applicants on 29th August 2009 that he was refusing their application for refugee status and that he proposed to make deportation orders in respect of them. An application for subsidiary protection was made, but this was refused by the Minister on 2nd March 2010.

4

The Minister ultimately made deportation orders in respect of the applicants on the 9th March 2010 and the applicants were notified of the making of these orders on 16th March 2010. The present proceedings were commenced on 1st April 2010.

5

While the applicants now challenge the deportation orders, they are also constrained to challenge the earlier decisions on which these orders are based, not least the decision of the Tribunal and that of the Minister refusing to grant refugee status under s. 17 of the Refugee Act1996 ("the 1996 Act"). The immediate difficulty for the applicants is that the present application to challenge these decisions is well outside the 14 day time limit prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act").

6

While an extension of time has been sought, it has to be said that no satisfactory explanation has been offered by the applicants in respect of this delay. The applicant merely states that she "totally depended on her former legal representatives", but no explanation has been offered for the very considerable delay which has taken place in the interval. It is clear from a series of decision of the Supreme Court that a laconic statement of this kind is insufficient to excuse the delay: see,e.g., CS v. Minister for Justice, Equality and Law Reform [2005] 1 I.R. 343. Nor has any explanation been offered as to the precise nature of the difficulties with her legal advisers which she claims to have encountered. She does not even say that she wished to challenge these decisions within the 14 day period.

7

In the ordinary way, I would have not been prepared to grant an extension of time under s.5 of the 2000 Act.

8

The applicants maintain, however, that key aspects of the 1996 Act are incompatible with Article 23 and Article 39 of the Procedures Directive, Council Directive 2005/85/EC. For the purposes of the present application, it is common case that, subject to the time limit issue, the applicants have presented substantial grounds that this is so. In those circumstances, it would appropriate to grant leave on this point if the applicants can show that the s.5 time limit is inapplicable in the circumstances of this application.

9

In this regard, it is important to observe that the applicants maintain that in these circumstances the respondents cannot rely on the provisions of s. 5 of the 2000 Act where - as they contend - the Procedures Directive has not been properly transposed into domestic law. In this regard, the applicants rely in the first instance on the decision of the Court of Justice in Case C-208/90Emmott v. Minister for Social Welfare [1991] ECR I - 4269.

10

Emmott is, in many respects, quite a singular case. While the Court of Justice stated in emphatic terms that no time limit could be applied by...

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