Minister for Justice wins appeal against asylum ruling

The Minister for Justice has won her appeal against a High Court finding her procedure for dealing with refusals to admit failed asylum seekers back into the asylum process breached "effective remedy" provisions of the relevant European directive.

In a significant High Court decision in 2015, Mr Justice Anthony Barr ruled the procedure operated by the Minister under regulations of 2011 did not comply with requirements of the 2005 Procedures Directive to provide an "effective remedy" for failed asylum seekers seeking to challenge decisions refusing to re-admit them to the asylum process.

The three-judge Court of Appeal this week allowed the Minister’s appeal in a judgment addressing an important point of EU law concerning “effective remedy” requirements of Article 39 of the Procedures Directive.

The appeal arose in the case of a woman from the Democratic Republic of Congo (DRC) who came here in 2008 and sought asylum on grounds she was of Rwandan parentage and at risk from the DRC authorities arising from a claim of spying. She was refused asylum and a deportation order was made in 2011.

She sought in 2012 to be readmitted to the asylum process on the basis of contemporary reports the DRC had a policy of ill-treating those of its citizens deported after being refused asylum abroad.

A Ministerial official refused to re-admit her and advised her she was entitled to review of that refusal, carried out by a more senior Ministerial official who in February 2013 made a fresh adverse decision.

Before that, the woman’s solicitors complained to the Minister the review procedures did not accord with the requirements of Article 39. After the Minister rejected that complaint, the woman sought judicial review and the High Court upheld her complaint.

Critical point

Allowing the Minister's appeal against the High Court decision, Mr Justice Gerard Hogan noted it was not really disputed the internal review provided by the Minister was not equivalent to a decision of a court or tribunal independent of the first instance decision maker. Both review decisions here were taken by civil servants, of admittedly different rank, in the name of the Minister.

The dispute was essential whether the Minister was correct in arguing the availability of a judicial review remedy to quash any refusal to admit the woman to the asylum process constituted an effective remedy under Article 39.

The High Court found availability of judicial review did not satisfy the requirements of an effective remedy due to limitations on the High Court’s jurisdiction when considering judicial review, including it could not review the merit of the decisions taken.

A critical point to emerge from decisions of the Irish and European courts was that judicial review constitutes in principle an effective remedy for the purposes of Article 39, Mr Justice Hogan said.

While the courts here previously took a "very limited view" of the scope of judicial review, various decisions including the 2010 Supreme Court "Meadows" decision had introduced a more modern style of judicial review to satisfy the requirements of Article 39.

While the judicial review court still cannot review the merits of a decision, it can quash it for unreasonableness, lack of proportionality, material error of fact or if it “simply strikes at the substance of constitutional or EU rights”. The judicial review can also examine conclusions reached to ensure they follow from the decision-makers premises.

The Court of Justice of the EU had implicitly said in another case Article 39 does not require member states to provide for a “specific” remedy. Article 39 imposed just one, “albeit critical” requirement, the remedy must remain an effective one.

While judicial review has inherent limitations, it critically permits a thorough review of the reasons of a decision maker and contemporary judicial review clearly provides an effective remedy for the purposes of Article 39, the judge concluded.