Ireland, High Court of Ireland, 20 June 2017 [2017] IEHC 570

Identification of the case

• Non-discrimination (art. 21 CFREU)
• Right to good administration (art. 41 CFREU)
• Right to an effective remedy and to a fair trial (art. 47 CFREU)
• Presumption of innocence and right of defence (art. 48 CFREU)

• Section 3 of the Immigration Act 1999 as amended
• The Refugee Act 1996 as amended
• Irish law in the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), Regulation 4

• Council Directive 2004/83/EC (“Qualification Directive”)
• Council Directive 2005/85/EC (“the Procedures Directive”)

Summary of the case

An application for leave to apply for judicial review was made by all three applicants, M.L., J.C.B. and V.J., approximately at the same time, and thus their cases were joined and considered together by the Court. The first two applicants had a very similar situation. They had applied for asylum and were refused asylum and the status of subsidiary protection status and were assigned a deportation order.

V.J. also had a refusal of the application for subsidiary protection and was a failed asylum seeker. As a refusal of refugee status, V.J. was sent a “three options” letter which informed the applicants to choose one of the three options; 1. leave the State; 2. consent to a deportation order; or 3. apply for subsidiary protection and/or make representations under s. 3 of the Immigration Act 1999. In the previous appeals, the applicant had submitted that they have several adverse consequences for the applicants. In the application before this Court, the court granted leave to the applicant to apply for judicial review solely based on the effect of imposing a precondition or disadvantage upon a subsidiary protection applicant, which is ultra vires Council Directive 2004/83/EC.

A common issue with the applicants was that they all complained about Ireland’s two-stage process in which applications were examined both as applications for refugee status and applications for subsidiary protection. In other EU states, this procedure is adopted as a single uniform procedure.

• Administrative judicial enforcement

The applicants applied for a judicial review which could initially remedy their status as a deported person.

The Court joined three different cases and considered them together as they had a similar basis.

The court leaned on the previous court’s ruling in explaining the stands on the case and that the applicants' claims had largely already been answered in the previous instances. However, the Court had to consider them separately again. Thus, the Court sought ultimately to respond to the claims of the subsidiary protection application process having failed to comply with the principle of “effectiveness and equivalence”, being disproportionate, unlawfully discriminatory and violating the right to good administration under Article 41 of the Charter of Fundamental Freedoms (para 32). The Court examined the process from The affidavit of Ms Maura Hynes, a principal officer with the Department of Justice and Equality submitting how the procedure goes and concluded that it was satisfied how the procedures outlined by Ms Hynes were applied in each of the applicants’ cases (para 48).

Moreover, the Court examined the further claims of the applicant, stating that the subsidiary protection application process breached the EU principles of effectiveness, equivalence and proportionality. The Court presented several CJEU and domestic cases regarding the principles and concluded that it was satisfied how the principles were applied. The Court concluded that “[i]t is abundantly clear from the evidence that each of the applicants was given a full opportunity to make an application for subsidiary protection after the refusal of their respective applications for refugee status”(para 54). The court concluded that “the applicants have also failed to establish that the procedures are so closely interwoven as to deny the applicants their right to apply for subsidiary protection or to relegate it to a grace and favour status or otherwise preclude or inhibit or disadvantage them in its exercise”( para 64).

The Court viewed the credibility of the applicants regarding the Article 41 of the Charter, which confers a right to good administration. The lack of credibility was a common feature in deciding the applicants’ status by the immigration officials. The Court referred again to the previous court decision, which included several cases highlighting the observance of the fundamental right of defence. Especially the right to be heard was taken into account. For example, the Boudjlida case (C-249/13) discussed the nature of the right to be heard guaranteed to an applicant for subsidiary protection: “The right to be heard guarantees the applicant for subsidiary protection the opportunity to put forward effectively, in the course of the administrative procedure, his views regarding his application for subsidiary protection and grounds that may give the competent authority reason to refrain from adopting an unfavourable decision”.

The Court held that each of the subsidiary protection decision proceedings in the case relied heavily upon the determination made in each case by the Refugee Appeals Tribunal on the credibility of each applicant. Therefore, the Court concluded that the respondents had failed to afford the applicants a fair opportunity to address credibility issues in the subsidiary protection application (para 92). Moreover, the applicants should have been invited to comment upon the adverse findings made by the Refugee Appeals Tribunal.

In conclusion, the Court granted orders of certiorari quashing the decisions made in each case.

Role of the Charter and role of the general principles on enforcement

The Charter was referred by the applicants on several grounds. First, they claimed that the procedure failed to comply with the principle of “effectiveness and equivalence”, was disproportionate, unlawfully discriminatory and violated the right to good administration under Article 41 of the Charter of Fundamental Freedoms. (para 32) The Court evaluated this, and while rejecting other claims, the right to be heard in Article 41(2) had a prevailing position in the outcome of the case.

Moreover, the applicants also claimed that the difference in treatment by the State of applicants for asylum and subsidiary protection applicants constitutes unlawful discrimination contrary to Article 14 of the European Convention on Human Rights and Article 21 of the Charter. However, the Court held that no discrimination was present. Also, the Court relied heavily on the argumentation given in the case M.M. v. the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Case C- 277/1), which had Articles 41, 47 and 48 of the Charter as a focal point.

• Explicit reference to Art. 41 CFREU (right to good administration)
• The obligation of the administration to give reasons for its decisions
• Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
• Right to an effective remedy before a tribunal
• Right to a fair trial
• Right to a public hearing within a reasonable time
• Right to a fair hearing by an independent and impartial tribunal previously established by law.

Section 3 of the Immigration Act, 1999 as amended

“3. (1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non- national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

(2) An order under subsection (1) may be made in respect of—... (f) a person whose application for asylum has been refused by the Minister, ...

(3) (a) Subject to subsection (5), where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.”

The notification of this proposal must include a statement that the person concerned may make the representations and under subs.

(4)(b):

“a statement that the person may leave the State before the Minister decides the matter and shall require the person to so inform the Minister in writing and to furnish the Minister with information concerning his or her arrangements for leaving,

(c) a statement that the person may consent to the making of the deportation order within 15 working days of the sending to him or her of the notification and that the Minister shall thereupon arrange for the removal of the person from the State as soon as practicable, and

(d) any other information which the Minister considers appropriate in the circumstances.”

Under subs. (5) the provisions of subs. (3) concerning the notification and the right to make representations and to receive notice of the decision and its reasons shall not apply to a person who has consented in writing to the making of the deportation order or a person who is outside the State.

Section 9 of the Refugee Act, 1996, as amended

Act. Section 9 provides that an applicant for asylum shall be entitled to remain in the State until the date upon which notice is sent that the Minister has refused to give him or her a declaration of refugee status under the Act. Under s. 17(5):

“Where the Minister has decided to refuse to give a declaration, he or she shall send to the applicant a notice in writing stating that—

(a) his or her application for a declaration has been refused,

(b) the period of entitlement of the applicant to remain in the State under section 9 has expired, and

(c) the Minister may make an order under s. 3 of the Immigration Act 1999 requiring the applicant to leave the State and if the notice contains the statement specified in subs. (4) of that section, it shall not be necessary for the Minister to give the notification specified in subs. (3) of that section.”

Subsection (6) confers a discretion on the Minister to grant permission in writing to a person whose application has been refused to remain in the State for such period and subject to such conditions as the Minister may specify in writing.

Irish law in the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) regulation 4

“1 (a) A notification of a proposal under s. 3(3) of the Act of 1999 should include a statement that, where a person to whom s. 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under s. 3(3)(b) of that Act, make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.

(b) An application for subsidiary protection shall be in the like form in Schedule 1 or a form to like effect.

(2) The Minister should not be obliged to consider an application for subsidiary protection from a person other than a person to whom s. 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in para. (1)(b).

(3) In determining whether a person is eligible for subsidiary protection, the Minister –

(a) shall take into consideration, in addition to matters mentioned in Regulation 5, any particulars furnished by the applicant under para. (1)(b); and

(b) may take into consideration –

(i) the information or documentation taken into consideration in relation to the determination of the applicant’s application for a declaration, and

(ii) such other information relevant to the application as is within the Minister’s knowledge.

(4) Where the Minister determines that an applicant is a person eligible for subsidiary protection, the Minister shall grant him or her permission to remain in the State.

(5) Where the Minister determines that an applicant is not a person eligible for subsidiary protection, the Minister shall proceed to consider, having regard to the matters referred to in s. 3(6) of the 1999 Act, whether a deportation order should be made in respect of the applicant.

(6) Nothing in these regulations shall affect the discretionary power of the Minister under s. 3 of the 1999 Act.”

The right to good administration under Article 41 of the Charter of Fundamental Freedoms had a dominant position in the reasoning of the Court. The Court decided the case on the basis of the applicants’ right to be heard in also the subsidiary protection application process. Therefore, it quashed the respective decisions for each applicant.

Moreover, the Court also explicitly referred to Article 47 of the Charter in deciding the case, as the applicants were all at the appeal stage.

• Equivalence
• Effectiveness
• Proportionality

The applicants submitted that the procedure failed to comply with the principle of “effectiveness and equivalence” (para 32) and that the connection made by the State between the subsidiary protection applications under the immigration/deportation procedure breached the principle of equivalence (para 50). Essentially, the claim included that the principle had been breached because the rules applicable to the subsidiary protection applicant are less favourable than to Asylum seekers. The Court considered this breach of the principle of equivalence together with the principle of effectiveness. It referred to inter alia B.J.S.A. v. the Minister for Justice and Equality [2011] IEHC 381 in holding that this separate process that the subsidiary protection applicants and asylum applicants had was conferred by EU law and was in accordance with the principle.

The applicants submitted that the rules applicable under the subsidiary protection application procedure make it “excessively difficult” for applicants to fully exercise their rights and that the applicants were obliged to submit their applications in the knowledge that a proposal had already been made to deport them.

The Court considered the claim of breach of the principle of effectiveness from multiple viewpoints. It considered the time limits of applications and appeals, the procedural rules asserting applicants’ rights and the fact that the applicants were allowed to remain in the member state until a decision has been made. Thus, it held that “applicants had a full opportunity to make submissions in respect of their applications for subsidiary protection. There is no evidence to support the proposition that the exercise of their rights was made ‘impossible’ or ‘excessively difficult’ in a manner that would contravene European Union Law” (para 55).

The applicants claimed from the start that the deportation order was disproportional and against the principle of proportionality. Moreover, the applicants submitted that the procedures adopted under the ‘three options letter’ had several adverse consequences for the applicants (para 61). However, the Court assessed this claim taking into account how the deportation decision is made and what the effects of it are, concluding that the process was duly proportional and did not preclude or disadvantage the applicants. It held that it was not satisfied that there had been established a suggested prejudicial connection of the deportation process to the decision on subsidiary protection.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-277/11, M
• CJEU C-279/09, DEB
• CJEU C-460/06, Paquay
• CJEU C- 429/15, Danqua
• CJEU C-7/98, Krombach
• CJEU C-322/81, Michelin v Commission
• CJEU C-374/87, Orkem v Commission
• CJEU C-17/74, Transocean Marine Paint Association v Commission
• CJEU C-287/02, Spain v Commission
• CJEU C-141/08 P, Foshan Shunde Yongjian Housewares & Hardware v Council
• CJEU C-27/09 P, France v People’s Mojahedin Organization of Iran
• C-560/14, M
• CJEU C-249/13, Boudjlida
• CJEU C-161/15, Bensada Benallal
• CJEU C-166/13, Mukarubega

• Conform interpretation with EU law as interpreted by the CJEU
• Disapplication of national law in favour of EU law
• Proportionality

Additional notes on the decision