Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
The applicant challenged the decision of the Refugee Appeals Tribunal which affirmed the negative recommendation of the Refugee Applications Commissioner on the applicant's asylum application. The applicant challenged the decision of the Refugee Appeals Tribunal claiming that the decision-making procedure violated Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status on the ground that the decision-making members of the Appeals Tribunals, who are appointed by the Minister for Justice, serve on a part-time basis and are remunerated on a case by case basis.
The applicant sought an order of certiorari, challenging the decision of the first named respondent affirming the negative recommendation of the Refugee Applications Commissioner on the applicant's asylum claim. The applicant contended that there was a violation of the right of effective remedy under Article 39 of Council Directive 2005/85/EC of December 1, 2005 read in conjunction with recital 27 and Article 267 TFEU with reference to Article 47 of the Charter.
Outcome of the case:
The Court refused to grant an order of certiorari to the applicant.
It held that there was no violation of the right to an effective remedy and, in doing so, referred to H.I.D & B.A. v Refugee Applications Commissioner & ors [2013] EUECJ C-175/11 (31 January 2013). Here, the Court of Justice held that the Refugee Appeals Tribunal is a competent authority and independent in its operation and observed that Article 39 of Council Directive 2005/85 does not preclude the applicant from lodging an appeal against the decision of the Tribunal to a higher authority and subsequently to the Court of Appeal and so the right to an effective remedy is not violated.
The Court in the present case focused on whether the fact that the decision-making members of the Appeals Tribunal are appointed by the Minister for Justice, serve on a part-time basis and are remunerated on a case by case basis meant that there was a violation of the right to an effective remedy. The Court did not see a need to consider all aspects of the job / role of the decision-making members of the Appeals Tribunal anew as these had already been dealt with by the CJEU in the case of HID & BA v Refugee Applications Commissioner & ors [2013] EUECJ C-175/11 (31 January 2013) which Cooke J had referred to the CJEU. The Judge in the current case concurred with the reasoning in HID & BA v Refugee Applications Commissioner & ors [2013] EUECJ C-175/11 as the composition of the Appeals Tribunal was the same as the composition in the previous case and referred to various aspects of the judgment throughout his judgment.
3. The only ground in the statement grounding the application for judicial review that is argued by the applicant is that of ground 5(3):-
Paragraph from the submission by the parties:
“The effective remedy required by the provisions of Article 39 of Council Directive 205/85/EC of the 1st December 2005 read in conjunction with Recital 27 and Article 267 TFEU (and with reference to Article 47 of the Charter of Fundamental Rights of the European Union) is not provided by the first named Respondent as one or more of the following may apply:-
3. The fact that the decision-making members of the first named Respondent body are appointed by the second named Respondent and further serve on a part-time basis and further are remunerated on a case by case basis.”
