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CJEU - C 175/11 / Opinion

H.I.D., B.A. v Refugee Applications Commissioner, Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Opinion of Advocate General
Type:
Opinion
Decision date:
06/09/2012
Key facts of the case:
  1. In the present case, the Court is requested by the High Court (Ireland) to interpret two provisions of Directive 2005/85/EC, (2) which establishes a minimum framework for the procedure for granting and withdrawing refugee status. The first of those provisions, Article 23(3) and (4), enables Member States to examine an application for asylum by the prioritised or accelerated procedure. The second, Article 39, requires that Member States ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against, in particular, the decision taken on their application for asylum.
  2. The applicants in the main proceedings, who are Nigerian nationals, maintain that those two provisions preclude the system for granting and withdrawing refugee status put in place in Ireland, in so far as the Minister for Justice, Equality and Law Reform may decide that certain categories of applications for asylum, defined on the basis of the nationality of the applicant, must be subject to a prioritised or accelerated procedure. They further contend that the possibility of lodging an appeal before the Refugee Appeals Tribunal (Ireland) does not ensure that they have the right to an effective remedy.
  3. It is therefore on those two points that the Court is requested by the referring court to give a ruling.
  4. In this Opinion I shall set out the reasons why I consider that Article 23(3) and (4) of Directive 2005/85 must be interpreted as meaning that it does not preclude a Member State from subjecting certain applications for asylum defined on the basis of the nationality or country of origin of the applicant to an accelerated or prioritised procedure.
  5. I shall then explain why, in my view, Article 39 of that directive and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) must be interpreted as meaning that they do not preclude national rules such as those at issue in the main proceedings, under which an appeal against the decision of the determining authority may be brought before the Refugee Appeals Tribunal and before the High Court.
Results (sanctions) and key consequences of the case:
 
In the light of the foregoing considerations, I propose that the Court should answer the questions raised by the High Court as follows:
  1. Article 23(3) and (4) of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as meaning that it does not preclude a Member State from subjecting to an accelerated or prioritised procedure the examination of certain categories of applications for asylum defined on the basis of the nationality or country of origin of the applicant.
  2. Article 39 of Directive 2005/85 and Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that they do not preclude national rules such as those at issue in the main proceedings, under which an appeal against the decision of the determining authority lies to the Refugee Appeals Tribunal and to the High Court.