Irish Court of Appeal
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Cite as: [2015] IECA 118
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 118
Record No. 2014/20CA Peart J. Irvine J. Hogan J. BETWEEN/ EVELYN DANQUA APPELLANT - AND -
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT JUDGMENT of Mr. Justice Gerard Hogan delivered on the 10th day of June 2015 1. In the absence of a specific requirement imposed by European Union law, the principle of national procedural autonomy permits each Member State to determine for itself the conditions by reference to which the rights and remedies thereby conferred by EU law will be enforced. It is by now well established that the principle of national procedural autonomy is subject to the twin requirements of effectiveness and equivalence. 2. It is the latter principle which is potentially engaged in the present case. The basic principle remains that articulated by the Court of Justice in Case 33/76 Rewe-Zentralfinanz AG v. Landwirtschaftskammer fûr das Saarland [1976] ECR 1989:
Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature." 4. The applicant maintains that the 15 day time limit infringes the principle of equivalence because no similar time limit is contained in respect of refugee applications. She also maintains that the decision to refuse to extend time to allow for an application of this kind is also unreasonable in law, specifically, because the Minister’s refusal to entertain the late application was predicated on the factual assumption that the applicant had made a conscious decision not to apply for subsidiary protection at the time in February/March 2011, when this was not, in fact, the case. 5. The applicant’s contentions were rejected in a reserved judgment delivered by MacEochaidh J. in the High Court on 16th October 2014: see ED v. Minister for Justice and Equality [2014] IEHC 456. 6. Before considering any of these questions it is first necessary to set out the relevant facts. The circumstances in which the applicant came to make an application for asylum 8. Ms. Danqua’s application was, however, refused on credibility grounds by a decision of the Refugee Application Tribunal by decision dated 13th January 2011. The Tribunal concluded that given her age, Ms. Danqua, did not match the profile of those who were subjected to the Trokosi practice and, for this and other reasons, the application was refused. The applicant was legally represented before the Tribunal by the Refugee Legal Service and she did not seek to challenge the decision of the Tribunal by way of judicial review proceedings. 9. The Minister subsequently issued a proposal to deport Ms. Danqua on 9th February 2011 but that letter also outlined her various options including her right to apply for a subsidiary protection and also to apply for humanitarian leave to remain. In that information leaflet she was informed “if you do not apply for subsidiary protection at the same time as you make representations under s. 3 of the Immigration Act 1999 (as amended) such an application will not be considered at a later date.” 10. As it happens, no such subsidiary protection application was received for reasons that will shortly be set out. By way of background, it should be noted that the applicant herself is functionally illiterate and she spoke little English at the time of her arrival in the State. It also appears from an attendance note made by the Refugee Legal Service (“RLS”) on the date of the hearing (7th October 2010) that the Tribunal member had commented that the Tribunal had endeavoured to secure an interpreter, but that no relevant translator in respect of Ms. Danqua’s mother tongue could be found in either the UK or Ireland. It is also clear from a further attendance note prepared by the relevant RLS solicitor on 17th February 2011 that while she informed Ms. Danqua of the up to date position, she was nonetheless concerned that Ms. Danqua “does not seem to understand me.” 11. At all events, following the adverse decision of the Tribunal the RLS informed Ms. Danqua that it did not consider that there were any substantial grounds as would warrant a subsidiary protection application:
Please note we have reviewed your file including the negative decision from the Refugee Appeals Tribunal, and are of opinion that the criteria for granting a subsidiary protection application are not likely to be met on the basis of the information on your file and relevant country of origin information. As such, we will not be assisting you in preparing the application for subsidiary protection. If you still wish to make a subsidiary protection application you may:- submit an application yourself in the form attached to your Section 3 letter; instruct a private solicitor at your own expense to submit the application; appeal, or seek review of, our decision not to assist you with a subsidiary protection application.” (emphasis in original) 13. By this stage, however, Ms. Danqua had found a new set of private solicitors who were prepared to act for her. On 8th October 2013 her new solicitors sought to submit an application for subsidiary protection and to revoke the deportation order. This application was not successful and the appellant was informed of this decision by letter dated 5th November 2013. In that letter the Minister stated:
In relation to the contention that the Refugee Legal Service may have advised your client against the lodgement of an application for subsidiary protection, the position is that an asylum or protection applicant solely and singularly is responsible for the lodgement of any application and within the prescribed period of time. The role of a legal representative is to give advice or guidance, assist in drafting etc. Ultimately the decision to lodge or not to lodge a specific application rests solely and singularly with the applicant themselves, given that it is the applicant who is “instructing” the legal representative and not vice versa. This being the case it was there to be taken that it was your client’s decision not to lodge an application for subsidiary protection at the appropriate time. As a result, and given that your client’s fifteen day window of opportunity for lodgement of an application for subsidiary protection has closed since March 2011, we cannot accept, or determine, such an application for your client at this point in time.” 15. In the light of this development, the Director of the Board wrote to the applicant’s new solicitors on 21st July 2014 stating:-
While the guidelines provide the considerations given to the “merits” of an application for subsidiary protection ... a practice is adopted and precedent letters drafted which had the effect of the solicitor making determination of the merits after the negative decision was received from the Refugee Appeals Tribunal and prior to the receipt of correspondence from the Irish Nationalisation and Immigration Service. The letter of 25th January 2011 .... was written to Ms. Danqua in that context.”
18. All of this is relevant to the second part of the applicant’s claim, namely, that the subsequent decision to exclude her application for subsidiary protection was unreasonable in law, because the premise of the Minister’s refusal letter - namely, that the applicant had made a conscious decision following legal advice not to apply for subsidiary protection - was not factually sustainable, not least in the light of the new information which has since come to light. The equivalence issue 20. Counsel for the Minister, Mr. Barron S.C., responds by saying that even if applications for asylum and subsidiary protection are regarded as equivalent for this purpose, there is still no breach of this principle, because asylum applications are governed either exclusively - or, the very least almost exclusively - by EU law, so that there is no question of the differing treatment of applicants relying on the EU law right (i.e., subsidiary protection) being disadvantaged in terms of time limits by comparison with an equivalent remedy governed by domestic law. 21. Mr. Barron S.C. further submitted that even if there were such a disadvantage, there is an objective justification for such differing treatment. In the nature of things, there cannot be a formal time limit on asylum applications. A non-EU national might, for example, have no need to apply for asylum on arrival in Ireland as, say, a student or an employee only to find some time later that an unexpected change of government or even a coup d’etat in his or her country of origin might trigger the necessity for an asylum application as a refugee sur place. 22. The position in relation to subsidiary protection is completely different, as under our bifurcated system of international protection, the applicant must first already have applied for asylum before separately applying for subsidiary protection in the event that the asylum application has been refused, even if that applicant for such protection is an applicant sur place. The Court of Justice has already held that this bifurcated system does not infringe the principle of effectiveness, provided that “the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time”: see C-604/12 HN v. Minister for Justice, Equality and Law Reform [2014] E.C.R. I-000, para. 57. The 15 day time limit for subsidiary protection applications serves the goal of ensuring the entire procedure for international protection is completed within a reasonable time. Mr. Barron S.C. accordingly submitted that the time limit in the case of subsidiary protection applications thus serves an important purpose which differentiates it from the case of asylum applications. 23. In this context it should be noted that the reasoning of the Court of Justice in HN proved decisive so far as the High Court was concerned. In HN the Court of Justice had stressed that our bifurcated system of international did not, in principle, infringe EU law. This finding was, however, subject to two conditions, namely, that it must be possible “to submit the application for refugee status and the application for subsidiary protection at the same time” and, second, that the entire procedure did not mean that the application for subsidiary protection was “considered only after an unreasonable length of time.” 24. In rejecting the contention that the principle of equivalence had been breached, MacEochaidh J. emphasised the fact that in the light of the Court of Justice’s judgment in HN in May 2014 it was clear that an applicant had the right to apply for subsidiary protection at the same time as an application for asylum:
26. In practice, therefore, the position at the time when Ms. Danqua first applied for asylum in 2010 was that there was a 15 day limitation period applied to subsidiary protection applications which ran from the date the Minister communicated with the applicant in the immediate aftermath of the refusal of the asylum application. This limitation period was, as we have noted, administratively imposed and was not contained in statute. In response to questions put by the Court in oral argument, Mr. Barron S.C., accepted that this 15 day time limit was subject to exceptions and that the Minister had in the past accepted late applications on an ad hoc case by case basis. Whether the principle of equivalence is engaged in the present case Are applications for asylum and subsidiary protection sufficiently close comparators? 29. It is clear from the judgment of Fennelly J. in TD v. Minister for Justice [2014] IESC 22 that in cases of this kind:
31. It may be noted that in a case presenting quite similar questions, FA (Iraq) v. Home Secretary [2011] UKSC 22, [2011] 4 All ER 503, the UK Supreme Court considered that given the uncertainties surrounding the question of the similarity of the comparator that a reference under Article 267 TFEU was required on this very question. (It should be stated that it is understood that this case was subsequently settled, so that the proposed reference to the Court of Justice was ultimately withdrawn.) 32. While this Court is of the view that as asylum and subsidiary protection procedures overlap and that they are, in principle, appropriate comparators for this purpose, this is nonetheless a matter which on which guidance might usefully be given by the Court of Justice. We propose to return briefly to this question at the conclusion of this judgment. Are applications for asylum exclusively based on EU law?
Does it suffice that the comparator is partly derived from EU law?
38. As Lord Kerr acknowledged in his judgment in FA (Iraq), this issue is not straightforward. At one level a comparator derived a mixed source of this kind might be thought to be inapt, since the entire object of the rules as to equivalence and effectiveness is to prevent the litigant relying on rights deriving from EU law from being placed at a disadvantage in respect of rights deriving from domestic law. This might be thought to be especially true in the present case, where, to all practical intents and purposes, the comparator in question (namely asylum applications) in practice derives exclusively from EU law. It must also be recalled that the right to asylum and to subsidiary protection both derive from the same source, namely, the Qualification Directive, even if the recitals to that Directive also makes clear that the right to refugee status under EU law is declaratory of a pre-existing right created by the 1951 Geneva Convention. 39. On the other hand, it could scarcely be correct that an otherwise appropriate comparator was to be dis-applied for this purpose because in some respects the right in question did not wholly derive from domestic law and retained some - possibly even in some cases exiguous - elements of EU law. It must also be recalled that the right to refugee status was, up to 1996, a right which was granted by the Government in the exercise of its own purely sovereign powers under Article 28.2 of the Constitution and, subsequently, by virtue of legislation enacted by the Oireachtas, namely, the Refugee Act 1996 (“the 1996 Act”), which legislation sought to give effect in Irish law to the requirements of the Geneva Convention. Thus, the right to refugee status originally derived from a purely domestic source, even if it is now in practice almost exclusively governed by EU law. 40. It is also easy to overlook in this context the fact that the right to apply for asylum is provided for in ss. 2 and 3 of the 1996 Act and that these were the legal provisions which were actually applied by the Tribunal in the present case to determine Ms. Danqua’s asylum application. The 1996 Act (as amended) has not been replaced and it must be regarded as a domestic effectuation of the obligations subsequently imposed by the Qualification Directive 2004. The question thus arises as to whether the 1996 Act ceased to be eligible as a comparator for this purpose by virtue of the fact that the right to asylum in the case of third country nationals was subsequently re-stated by the provisions of the Qualification Directive. 41. This was the general background to the UK Supreme Court’s decision in FA (Iraq). In that case the English Court of Appeal had ruled that the principle of equivalence required that a right of appeal against an international protection decision be recognised since the lack of an appeal (for which the relevant legislation had not provided) would mean that this claim, based as it was on EU law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The British Home Secretary appealed that decision to the UK Supreme Court on the ground that the mooted comparators (the asylum claim and the humanitarian protection claims) both have their origin in the Qualification Directive and were therefore are rooted in EU law. 42. In his judgment Lord Kerr discussed many of the questions with which we also have had to grapple in the present case. He concluded ([2011] 4 All ER 503, 516):
Conclusions 45. First, can an application for asylum, which is governed by domestic legislation which reflects a Member State’s obligations under the Qualification Directive, be regarded as an appropriate comparator in respect of an application for subsidiary protection for the purposes of the principle of equivalence? 46. Second, if the answer to the first question is in the affirmative, is it relevant for this purpose that the time limit imposed in respect of applications for subsidiary protection
(ii) that the time limit serves important interests of ensuring that applications for international protection are dealt within a reasonable time? |