T.D. v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Murray J.
• Judgment Date: 10 April 2014
• Neutral Citation: [2014] IESC 29
• Court: Supreme Court
• Docket Number: [Appeal No. 405 JR/2010],[S.C. No. 184 of 2011]
• Date: 10 April 2014

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)

Respondents

and

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

Appellants

[2014] IESC 29

Denham C.J., Murray J., Fennelly J., O"Donnell J., McKechnie J.

[Appeal No. 405 JR/2010]

THE SUPREME COURT

Refugee Status – Appeal – Judicial Review - Illegal Immigrants (Trafficking) Act 2000 – Time Limits – Persecution – Credibility – Human Rights – European Law

Facts: This case concerned an appeal by the Minister against a decision of the High Court on the 25 ^th January 2011 to grant to the respondents leave to apply for a judicial review of a decision made by the Minister pursuant to s.17 of the Refugee Act 1996 ('the Act of 1996'), whereby he refused to grant them refugee status. The learned trial judge granted leave to appeal, certifying that s.5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 ('the Act of 2000') imposed a 14 day time limit on the making of an application for leave to issue judicial review proceedings in such cases. The respondents were both South African nationals. In April 2009 the first named respondent applied for asylum, and she also sought her children, the second and third named respondents, to be included in her asylum application without any separate investigation of their claim. From the outset the first named respondent had access to legal advice through the Refugee Legal Service. Having been notified by letter on the 12 ^th May 2006 that the Refugee Applications Commissioner was recommending that they would not be declared refugees, an appeal was lodged on the 26 ^th May 2009. The first named respondent had claimed to have suffered persecution in South Africa by reasons of her race, and the recommendation that her application be refused was based on a lack of credibility as to her grounds. In a decision dated 15 ^th July 2009, the Refugee Appeals Tribunal ('the Tribunal') affirmed the recommendation of the Commissioner. The conclusion of the Tribunal was that the respondents claim for asylum lacked credibility and plausibility. The decision of the Tribunal was notified to the respondents by letter dated 30th July, 2009. On 29 ^th August 2009 the Minister informed the respondents 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 the 2nd March, 2010. On the 9th March, 2010 the Minister made deportation orders in respect of the respondents. They were notified of the making of these orders on 16th March, 2010. On 1st April, 2010 judicial review proceedings were commenced by the respondents. They challenged the deportation orders and called into question the earlier decisions made by the Minister and by the Tribunal. It was noted that an immediate difficulty was that the application to challenge the decisions was outside of the 14 days" time limit prescribed by s.5 of the Illegal Immigrants (Trafficking) Act, 2000. As regards the 14 day time limit the learned High Court judge noted that while an extension of time had been sought by the respondents, no satisfactory explanation had been offered by them for the very considerable delay which had taken place since those earlier decisions. He expressed the view that, in the ordinary way, he would not have been prepared to grant an extension of time under s.5 of the Act of 2000, even though it was common case that the respondents had otherwise presented substantial grounds as regards their contention that key aspects of the Act of 1996 are incompatible with certain provisions of the, Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, O.J L 326/34 13.12.2005 ('the Procedures Directive'). The learned High Court judge found that the strict time limit provided for by s.5 of the Act of 2000 was incompatible with both the principle of equivalence and the principle of effectiveness under European Union law and accordingly, granted the respondents leave to apply for judicial review. The Minister wished to appeal the decision of the High Court.

Held by Justice Murray that it was not in issue between the parties that the asylum rights which the respondents sought to assert were rights derived from the law of the European Union. Furthermore, relying on the Procedures Directive (which applied to the hearing and determination of the respondents" application for refugee status) the respondents sought to set aside the decision of the Minister to make deportation orders and, as was pointed out in the High Court judgment, the earlier decisions on which these orders were based, in particular the decision of the Refugee Appeals Tribunal and of the Minister refusing to grant refugee status under s.17 of the Act of 1996. Acknowledging that the right to asylum and refugee status was guaranteed by Article 18 of the Charter of Fundamental Rights of the European Union and that Ireland, had a duty to grant refugee status to those who qualify as refugees in accordance with the criteria set out in Directive 2004/83/EC (the Qualifications Directive), the court reasoned that the rights which the respondents south to assert derived exclusively from the law of the European Union since the State was obliged to give effect to European law and it could not, by way of legislation or otherwise, deny or limit the rights conferred by the Charter and the relevant Directives given the primacy which was accorded by the Constitution to the law of the European Union. Accepting that the respondents had, sought to set aside the decision of the Minister to refuse them refugee status as well as the earlier decisions of the Refugee Appeals Tribunal and having regard to the clear principles laid down by the Court of Justice, Justice Murray was of the view that the learned High Court judge was correct in rejecting the contention that for the principle of equivalence it was sufficient to compare an action for setting aside the decisions in issue based on national law with an action to set aside the same decisions based on E.U. law. Having examined the relevant case-law and statutory provisions, and in the absence of any evidence, or even assertion, by the respondents that there was any particular difficulty in complying with the period laid down in s.5 of the Act of 2000, Justice Murray reasoned as a fact that the limitation period in this case rendered the respondents access to a judicial remedy practically impossible or excessively difficult. It was further stated that the learned trial judge"s conclusion nonetheless, that the limitation period provided by s.5 of the Act of 2000 must be treated as being in breach of the principle of effectiveness, appeared to be based on a more abstract analysis of the limitation period in the light of certain statements of the Court of Justice in the particular cases to which he referred. Firstly, it was reasoned that he considered that the difficulties which asylum seekers are likely to encounter in preparing for litigation governed by such a very short time limit ' are probably at least as great in practice as those identified by the Court of Justice in Pontin.' Justice Murray in departing from this line of reasoning determined that in Pontin, a pregnant employee who learns of her dismissal and the grounds of her dismissal for the first time by post will have at the most 15 days, and possibly less, in which to bring a claim in a particular way to a particular forum. For those purposes she will have to seek specialist legal advice and prepare and bring an action within that short time limit. Her dismissal is a wholly new event for the pregnant employee and she has to confront and deal with her problem of dismissal for the first time within that 15 day period. In contrast, the respondents in the case at hand it was stated had the benefit of professional legal advice from the very beginning when their application for asylum went before the Applications Commissioner right through the appeal process and up to and including the time when the Minister informed them in August, 2009 that he was refusing the application for refugee status and proposed to make a deportation order. According to Justice Murray these deportation orders were not ultimately made until March, 2010. Before these orders were made the respondents, and their legal advisors, would have had full knowledge of the decisions and findings adverse to them and their legal implications. For these reasons, and the other reasons referred to above, the respondents in this case were in a much different and stronger position, than the position of a person in the situation of Ms. Pontin. Thus, according to Justice Murray, it dit not seem that there was any substantial comparison to be made between the capacity of persons in the position of the respondents to initiate and bring proceedings within the time limit fixed by s.5 of the Act of 2000 and that of an injured party such as Ms. Pontin who has 15 days or less to seek a lawyer, get advice and bring a claim from the time when she first heard of a potential breach of her rights. Moreover, in the case at hand, Justice Murray pointed out that the respondents had not made the case that there was some particular difficulty which prevented them from initiating proceedings earlier than when they did or indeed within the 14 day period. Consequently, it was determined that the Pontin case was not one which was comparable the situation in the present case, and in particular that it was a basis in principle for concluding that the limitation period was in breach of the rule of effectiveness. Given the context and point in the asylum application process, as already explained, at which the 14 day period applied, Justice...