High Court refused certificate for leave to appeal on judicial review remedy adequacy under Article 39.

Neutral Citation Number: [2012] IEHC 34

THE HIGH COURT

2011 147 JR

BETWEEN/

P. M.

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM,

ATTORNEY GENERAL AND IRELAND (No.2)

RESPONDENTS

JUDGMENT of Mr. Justice Hogan delivered on the 31st January, 2012

1. The applicant, Ms. M., is a Botswanian national who was notified on 5th February 2011 that she was now subject to a deportation

order which had been made by the Minister. A few weeks earlier the Minister had refused her applications for refugee status and for

subsidiary protection. On 6th December, 2009, the Refugee Appeal Tribunal had affirmed the recommendation of the Office of the

Refugee Applications Commissioner that she be refused refugee status. Neither the decision of the Tribunal nor that of the

Commissioner have ever been challenged in judicial review proceedings.

2. Following the delivery of my judgment in respect of Ms. M’s application whereby I refused to grant her leave to apply for judicial

review (save that, as we shall presently see, I adjourned one aspect of that application), Ms. M. has now applied for a certificate for

leave to appeal to the Supreme Court pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”). In that

judgment (M v. Minister for Justice and Law Reform [2011] IEHC 409) I rejected the argument that the Refugee Act 1996 (“the 1996

Act”) was ultra vires the provisions of Article 39(1) of the Procedures Directive 2005/85/EC on the basis that no effective remedy has

been provided against the decision of the Minister to refuse the applicant a declaration of refugee status.

3. The essence of the applicant’s case is that she has been denied an effective remedy by reason of (i) the lack of institutional

guarantees in respect of the independence and impartiality of the Refugee Appeal Tribunal and (ii) the inadequacy of the remedy of

judicial review as means of challenging administrative decisions in relation to international protection.

Lack of institutional guarantees

4. The essence of Ms. M.’s claim in respect of the lack of institutional guarantees is that she has been denied an effective remedy in

respect of her appeal from the Office of the Refugee Applications Commissioner to the Refugee Appeal Tribunal on the ground that the

latter body lacks the basic institutional guarantees of independence and impartiality. It is clear from the decision of the Court of

Justice in Wilson Case C-506/14 [2006] E.C.R. I -8613 that an appeal to a body which lacked such guarantees might well involve an

infringement of the right to an effective remedy.

5. This, however, is perhaps just another way of expressing the point which is the subject of a reference from this Court (Cooke J.)

to the Court of Justice pursuant to Article 267 TFEU in D and A v. Refugee Applications Commissioner [2011] IEHC 33. As I indicated

at the conclusion of the first judgment, I adjourned this aspect of the application pending the outcome of the reference. Even if the

Court of Justice finds for the applicants in that case, it does not necessarily follow that this applicant will be entitled to avail of that

decision given in particular that she did not raise the point at the time.

Conclusions

6. Beyond noting this point, it would be premature to offer any further views one way or the other. This aspect of the case will simply

have to await the outcome of the reference in D and A. As this aspect of the leave application remains adjourned, the question of a

certificate simply does not arise at this juncture. We can now proceed to consider the other aspect of the case.

The adequacy of judicial review proceedings

7. This application for a certificate effectively obliges the Court to consider afresh the implications of Article 39 of the Procedures

Directives for present judicial review practice and the asylum process so far as the adequacy of the remedy of judicial review is

concerned. There has been one extremely important development since the initial application for leave was first argued, as the extent

of a Member State’s obligations under Article 39 has been subsequently fully examined by the Court of Justice in Case C-69/10 Diouf

(2011). It seems appropriate to examine the implications of that decision in a little detail.

8. In that case, the applicant, a Mauritanian national without a legal right of residence in Luxembourg, had found that his application

for asylum had been rejected under an accelerated procedure. The relevant Luxembourg law at the time had provided that the

Minister’s decision to invoke the accelerated procedure rule could not be challenged in judicial proceedings. The applicant maintained

that the existence of such a provision was contrary to the effective guarantee requirement contained in Article 39 of the Procedures

Directive.

9. The Court stressed (at paragraph 29 of the judgment) that the procedures guaranteed by the Procedures Directive were minimum

standards and that:

“the Member States have, in a number of respects, a margin of appreciation with regard to the implementation of

those provisions in the light of the particular features of national law.”

10. The Court proceeded to hold that procedural decisions - such as the decision to invoke the accelerated procedure - were not

themselves directly within the ambit of Article 39 itself. The Court added, however, the following important provisos (at paragraphs

56-58):

“56. Accordingly, the absence of a remedy at that stage of the procedure [i.e., to invoke the accelerated

procedure] does not constitute an infringement of the right to an effective remedy, provided, however, that the

legality of the final decision adopted in an accelerated procedure – and, in particular, the reasons which led the

competent authority to reject the application for asylum as unfounded – may be the subject of a thorough review

by the national court, within the framework of an action against the decision rejecting the application.

57. As regards judicial review within the framework of a substantive action against the decision rejecting the

application for international protection, the effectiveness of that action would not be guaranteed if – because of

the impossibility of bringing an appeal under Article 20(5) of the Law of 5 May 2006 – the reasons which led the

Minister for Labour, Employment and Immigration to examine the merits of the application under an accelerated

procedure could not be the subject of judicial review. In a situation such as that at issue in the main proceedings,

the reasons relied on by that Minister in order to use the accelerated procedure are in fact the same as those

which led to that application being rejected. Such a situation would render review of the legality of the decision

impossible, as regards both the facts and the law (see, by analogy, Case C 506/04 Wilson [2006] ECR I 8613,

paragraphs 60 to 62).

58. What is important, therefore, is that the reasons justifying the use of an accelerated procedure may be

effectively challenged at a later stage before the national court and reviewed by it within the framework of the

action that may be brought against the final decision closing the procedure relating to the application for asylum. It

would not be compatible with EU law if national rules such as those deriving from Article 20(5) of the Law of 5 May

2006 were to be construed as precluding all judicial review of the reasons which led the competent administrative

authority to examine the application for asylum under an accelerated procedure.”

11. What is vital, therefore, is that - as the foregoing passages from Diouf make clear - an applicant denied international protection

has an effective remedy before an independent court or tribunal in respect of the refusal to grant such protection.

12. So far this State is concerned, as I pointed out in Efe v. Minister for Justice [2011] IEHC 214, Article 40.3.2 of the Constitution is

dedicated to securing effective redress for the individual whose rights have been infringed (“The State shall....in the case of injustice

done, vindicate the life, person, good name and property rights of every citizen.”). This is complemented by Article 40.3.1 which

obliges the State “to vindicate the personal rights of the citizen”. One of those personal rights is the right of access to the courts

and the Supreme Court has expressly held that non-nationals such as Ms. M. have such a constitutional right of access to the courts

for the purposes of enforcing their legal rights: see Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at

385, per Keane C.J. This very right also flows from the provisions dealing with the administration of justice (Article 34.1) and the full

original jurisdiction of the High Court (Article 34.3.1).

13. It was against that general background that it has been held that the common law rules of judicial review provide an effective

remedy for any litigant wishing to challenge the validity of an administrative decision: see, e.g., ISOF v. Minister for Justice, Equality

and Law Reform [2010] IEHC 457 and Efe. It is clear, moreover, that the adequacy of the reasons for a particular administrative

decision relating to international protection can be challenged in judicial review proceedings: see, e.g., Meadows v. Minister for

Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701.

14. The suggestion, therefore, that the State has failed to provide litigants with access to an effective remedy - a common argument

advanced in so much contemporary litigation - is unfounded and artificial. The scope of the obligations imposed in this regard by

Article 39 of the Procedures Directive have, moreover, been amply clarified by the decision of the Court of Justice in Diouf. Nor,

indeed, has the applicant explained how it is contended any of the existing judicial review remedies are inadequate.

Whether a certificate should be granted

15. We may now proceed to examine whether a certificate of leave to appeal to the Supreme Court should be granted. Section 5(3)

(a) provides:

“The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an

application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the

Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the

High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable

in the public interest that an appeal should be taken to the Supreme Court.”

15. As I pointed out in U. v. Minister for Justice (No.3) [2011] IEHC 59 the principles governing the granting of certificates in cases of

this kind have been clarified by a series of decisions of this Court:

“At the risk of repeating points already well ventilated in a series of judgments in these and other cases which have

been decided by this Court, a number of salient principles can nonetheless be briefly set out. First, the decision

must involve a point of law, so that the point of law in question arises directly from the judgment sought to be

appealed. Second, the point of law must be one of exceptional public importance and this is a “significant additional

requirement”: see Glancré Teo. v. An BordPleanála [2006] IEHC 250, per MacMenamin J. Third, it must be desirable

in the public interest that the appeal be taken to the Supreme Court. The Oireachtas has clearly signalled via the

2000 Act that finality of litigation in the asylum area is in the public interest and, as MacMenamin J. put it in Glancré

Teo., the power to certify should be exercised “sparingly.” This suggests that the power to certify should be

confined to those cases where it is desirable that, for example, some uncertainty in the law should be clarified for

once and for all by the Supreme Court. Fourth, while the statutory requirements overlap to some degree, they are

cumulative and these statutory requirements each call for individual consideration.”

16. We can now proceed to apply these principles to the case at hand.

Does the Decision involve a Point of Law?

17. It is plain that the proper construction of Article 39 of the Procedures Directive and the application of these requirements so far

as the Irish legal system involve points of law, the resolution of which was the central feature of the original judgment in respect of

the leave application. The first of the three statutory requirements is thus satisfied.

Is the Point of Law one of Exceptional Public Importance?

18. On the question of whether the point of law involved is one of exceptional public importance, I might again venture to repeat

what I said on this point in U (No.3):-

“The very fact that s. 5(3)(a) of the 2000 Act requires that the point of law be one of exceptional public

importance underscores the expectation of the Oireachtas that the power to certify would be confined to special

and unusual cases. While the use of the term “exceptional” speaks for itself, in my view, the purpose of this

provision is to confine the power to certify to those cases where the point of law is of such intrinsic importance

that it merits adjudication by the Supreme Court. It is thus possible, for example, to envisage an unusual or novel

point of law affecting only a small number of litigants which nonetheless presented a point of law of exceptional

public importance: see, e.g., the comments of Finlay Geoghegan J. in Raiu to this effect.

10. Quite obviously, the point of law must “transcend well beyond the individual facts of the case”: see Irish Press

plc v. Ingersoll Irish Publications Ltd. [1995] 1 I.L.R.M. 117, 120, per Finlay C.J. But, as Finlay Geoghegan J. noted

in Raiu, this in itself is not sufficient to meet the requirement that the point be “exceptional”, since the same could

be said of most points of law which arise in almost any application for judicial review.”

19. One could not but conclude that the question of the proper interpretation of the requirements of an effective remedy in Article 39

as applied in our legal system did not raise a question of exceptional public importance. The issue is not only one of intrinsic

importance, but it also impacts on the operation of the entire system of international protection. The resolution of this question could

potentially affect hundreds (if not, indeed, thousands) of administrative decisions taken in the immigration area.

20. In these circumstances, I consider that the second statutory requirement is thus satisfied.

Whether it is Desirable in the Public Interest that an Appeal be taken to the Supreme Court

21. There remains for consideration the question of whether it is desirable in the public interest that a certificate be granted. On this

point, I would again apply the criteria which I applied in U. (No.3):-

“Of course, as Finlay Geoghegan J. noted in Raiu, it is not the function of the Court to assess the question of the

strength of the potential grounds of appeal. Nevertheless, as Clarke J. pointed out in Arklow Holidays Ltd. v. An

Bord Pleanála (No. 3) [2008] IEHC 2, these comments must be understood in their proper context, since it would not

be appropriate to certify a point of law which involved the application of clear and established principles:

‘….this court’s view as to the strength or weakness of the argument in favour of the intending

appellants point of view on the issue concerned, is not relevant in determining whether it is an

important point of law or not. Subject to the caveat that no certificate could be given where the law is

clear and the intending appellant has, therefore, lost on the basis of an application of clear and

established legal principles to the facts of his case, I agree that the court should not attempt to

consider what the chances of the intending appellant on appeal might be.’

Given the burden of work which the Supreme Court is required to discharge, it cannot be regarded as being

desirable in the public interest that that Court should be expected to adjudicate upon an issue which is clear-cut

almost to the point of being beyond argument. If (as here) the issue of the construction of the sub-section is

straightforward and determined by the plain meaning of the relevant statutory words, then it is not in the public

interest that the Supreme Court should be required to determine this point.”

22. It may be that the question at issue here was not as straightforward as the question of statutory construction was in U.

Nevertheless, in the light of Diouf, the implications of Article 39 have been fully clarified by the Court of Justice. It is now clear that

Article 39 merely requires that an effective remedy is available before a court or tribunal in respect of any decision to refuse

international protection and that the reasons for that decision can be challenged.

23. It is abundantly clear from cases such as ISOF and Efe that the judicial review procedure provides an effective remedy for this

purpose. It is equally clear from decisions such as Meadows that the adequacy of the reasons for any such administrative decision

can be scrutinised and examined in judicial review proceedings.

24. In these circumstances, it is really impossible to avoid the conclusion that the law in this point has been clarified by a series of

judicial decisions, not least by the judgment of the Court of Justice in Diouf. Given that the law is now clear beyond any real

argument, it would not accordingly be in the public interest that the point should be referred to the Supreme Court.

Conclusions

25. While I am of the view that the decision involves a point of law concerning the construction of Article 39 of the Procedures

Directive (and the application of the requirements of Article 39 in the context of the Irish legal system) and that this point of law is

one of exceptional public importance, nonetheless, given that the point in question have been fully clarified by a series of judicial

decisions, I have concluded that it would not be desirable in the public interest that an appeal should be taken to the Supreme Court.

26. It is for this reason that I have concluded that it would not be appropriate that I should grant the certificate sought so far as it

concerns the adequacy of the judicial review remedy as an effective remedy for Article 39 purposes. The remaining aspect of the

case remains adjourned pending the outcome of the reference in D and A.