Ireland / Supreme Court / [2014] IESC 29 TD, ND (a minor suing by her mother and next friend TD) and AD (a minor suing by his mother and next friend TD) v Minister for Justice, Equality and Law Reform, Attorney General and Ireland

Key facts of the case:

The respondents were failed asylum seekers who sought to contest, by means of judicial review, a number of decisions whereby the State refused them recognition as refugees pursuant to s. 17 of the Refugee Act 1966. The State argued that their application for judicial review was out of time as s. 5 of the Illegal Immigrants (Trafficking) Act 2000 imposes a 14 day time limit on the making of an application for leave to initiate judicial review proceedings in asylum cases. The High Court had raised, of its own motion, the question of whether the time limit imposed by s. 5(2) was compatible with the principles of equivalence and effectiveness under EU law. The Supreme Court reviewed the High Court’s decision on this issue and also referred to Article 47 of the Charter of Fundamental Rights regarding the right to an effective remedy.

Paragraphs referring to EU Charter (original language): 

 

10. The “area of freedom, security and justice” encompasses asylum policy. Article 78 of the Treaty on the Functioning of the European Union provides that the Union is to “develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection...” That policy “must be in accordance with the Geneva Convention of 28 July 1951...and other relevant treaties.” Article 18 of the Charter of Fundamental Rights of the European Union provides: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union…”

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15. The question of whether s. 5(2) of the Act of 2000 infringes the principle of equivalence arises in the context of the performance by the State of its obligation to provide a judicial remedy to persons having claims, here regarding asylum decisions, under EU law. Article 19 TEU, which provides for the Court of Justice of the European Union, provides: “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” That duty is reinforced, at a general level, by Article 47 of the Charter of Fundamental Rights of the European Union as follows: “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.” Furthermore, specific provision is made by the Procedures Directive for the obligation on the Member States and their courts in matters of asylum. It is a general principle of EU law that an applicant for asylum has a right to an effective remedy before a court or tribunal of the Member State in which he makes his application. (See Case C-69/10 Diouf v Minister du Travail [2011] ECR I-7151). There is a consequential duty laid on the courts of the Member States to afford judicial protection to individuals claiming rights derived from EU law in general and in respect of asylum and international protection, in particular.

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18. The right to asylum is now guaranteed by the Charter of Fundamental Rights of the European Union. Article 18 of the Charter provides “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community”. That is a very clear guarantee of a specific right. The long title to the Act of 1996 states that one of the purposes of the Act is to give effect to the foregoing Convention and Protocol. Although rights and obligations concerning the granting of refugee status are contained in those international instruments, the rights of individuals to apply for refugee status and the obligation of Member States to grant them now find their expression in the law of the European Union, such as in Article 18 of the Charter referred to above.

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20. Recital 10 states “[t]his Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.” (emphasis added)

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57. As already explained, the right to asylum and refugee status is now guaranteed by Article 18 of the Charter of Fundamental Rights of the European Union and Ireland, along with other Member States, has 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 rights which the respondents seek to assert derive exclusively from the law of the European Union since the State is obliged to give effect to European law and it cannot, by way of legislation or otherwise, deny or limit the rights conferred by the Charter and the relevant Directives given the primacy which is accorded by the Constitution to the law of the European Union.

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82. Although the Act of 1970 was enacted prior to the United Kingdom becoming a Member State, the Court of Justice noted, at para.48 of its judgment, “Following the accession of the United Kingdom to the Communities, the Act constitutes the legislation by means of which the United Kingdom discharges its obligations under Article 119 of the Treaty and, subsequently, under the Directive. The Act cannot therefore provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence.” In the present case the Refugee Act 1996, as amended, and the process for which it provides, is the means by which the State discharges its obligations under the Charter of Fundamental Rights, and Council Directive 2004/83/EC in relation to asylum applicants.

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120. Any consideration of the application of s.5(1) and (2) has to bear in mind that the list of decisions referred to concern two different categories of persons distinguished, inter alia, by the rights vested in them and the power of the State to control its own borders as regards aliens and its obligation to respect the rights of asylum seekers by permitting them to remain in the State for the purpose of claiming refugee status, a fundamental right guaranteed by the Charter of the E.U.

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131. “For this reason, in this sphere of immigration, its restriction or regulation, the non-national or alien constitutes a discrete of category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, in many of its aspects, could not, be applied to its citizens”. (emphasis added) So stated by this Court in its judgment In the Matter of Article 26 of the Constitution and the Illegal Immigrants Trafficking Bill, 1999 [2000] 2 I.R. 360 at 382. Consequent upon the guarantees contained in the Charter of Fundamental Rights of the European Union it may also be said that aliens may be subject to measures which would not, and in many aspects, could not, be applied to foreigners who have the status in the State of asylum seekers.

Language: 
English
Deciding body (original language): 
Supreme Court
Language: 
English