Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> T.D. -v- Minister for Justice Equality and Law Reform [2014] IESC 29 (10 April 2014)
URL: http://www.bailii.org/ie/cases/IESC/2014/S29.html
Cite as: [2014] 3 CMLR 19, [2014] IESC 29
[New search] [Help]
Judgment Title: T.D. -v- Minister for Justice Equality and Law Reform Neutral Citation: [2014] IESC 29 Supreme Court Record Number: 184/11 High Court Record Number: 2010 405 JR Date of Delivery: 10/04/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Fennelly J., O'Donnell J., McKechnie J. Judgment by: Murray J. Status of Judgment: Unapproved |
THE SUPREME COURT
Denham C.J. [Appeal No. 184/2011]
TD, ND (A MINOR SUING BY HER MOTHER AND NEXT FRIEND TD) AND AD (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND TD) Respondents and MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND Appellants Judgment of Murray J. delivered on the 10th day of April, 2014 (UNAPPROVED)
1. This is an appeal by the Minister against a decision of the High Court (Hogan J. on the 25th January, 2011, [2011] IEHC 37 ) to grant to the respondents leave to apply for a judicial review of a decision made by the Minister pursuant to s.17 of the Refugee Act 1996 (“the Act of 1996”), whereby he refused to grant refugee status to the respondents. 2. The learned trial judge granted leave to appeal, certifying the following question of law for the purpose of that appeal pursuant to s.5(3) of the Illegal Immigrants (Trafficking) Act 2000 (“the Act of 2000”):
It is not in issue that the rights which the respondents have sought to rely on and invoke in these proceedings are rights under European Union law. Background Facts The respondents are South African nationals. In April, 2009 the first named respondent applied for asylum in the State, and she also sought her children, the second and third named respondents, to be included in her asylum application without any separate investigation of their claim. 4. From the outset the first named respondent had access to legal advice through the Refugee Legal Service. The first named respondent, having completed the appropriate questionnaire and interview on 6th May, 2009, was notified, by letter dated 12th May, 2009, that the Refugee Applications Commissioner (“the Commissioner”) was recommending that they would not be declared refugees. The first named respondent had claimed to have suffered persecution in South Africa by reasons of her race, and the recommendation that her application be refused was based on a lack of credibility as to her grounds. The full details and merits of her application for refugee status are not relevant to the issue of law arising in this appeal. 5. The respondents lodged a Notice of Appeal against the recommendation of the Commissioner. This was lodged on 26th May, 2009 and, in a decision dated 15th July, 2009, the Refugee Appeals Tribunal (“the Tribunal”) affirmed the recommendation of the Commissioner. The conclusion of the Tribunal was that the respondents claim for asylum lacked credibility and plausibility. The decision of the Tribunal was notified to the respondents by letter dated 30th July, 2009. 6. On the 29th August, 2009 the Minister informed the respondents that he was refusing their application for refugee status and that he proposed to make deportation orders in respect of them. An application for subsidiary protection was made, but this was refused by the Minister on the 2nd March, 2010. On the 9th March, 2010 the Minister made deportation orders in respect of the respondents. They were notified of the making of these orders on 16th March, 2010. 7. On 1st April, 2010 the present judicial review proceedings were commenced by the respondents. In these proceedings the respondents not only challenge the deportation orders but rather, they also call in question earlier decisions made by the Minister and by the Tribunal. This was pointed out by the learned High Court judge in the following terms when he stated that the respondents “…are also constrained to challenge the earlier decisions on which these [deportation] orders are based, not least the decision of the Tribunal and of the Minister refusing to grant refugee status under s.17 of the Refugee Act, 1996…The immediate difficulty with the applicants is that the present application to challenge these decisions is well outside the 14 days time limit prescribed by s.5 of the Illegal Immigrants (Trafficking) Act, 2000…”. 8. As regards the 14 day time limit the learned High Court judge noted that while an extension of time had been sought by the respondents, no satisfactory explanation had been offered by them for the very considerable delay which had taken place since those earlier decisions. 9. The learned High Court judge expressed the view that, in the ordinary way, he would not have been prepared to grant an extension of time under s.5 of the Act of 2000, even though it was common case that the respondents had otherwise presented substantial grounds as regards their contention that key aspects of the Act of 1996 are incompatible with certain provisions of the, Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, O.J L 326/34 13.12.2005 (“the Procedures Directive”). 10. In short, the learned High Court judge decided that if he were to apply the provisions of s.5 of the Act of 2000, as regards the time limit for bringing judicial review applications, he would dismiss the application because it was out of time and there were no grounds upon which he could exercise his discretion under the section to extend the time limit, even though the discretion is wide and the section is applied in a flexible manner where there are any reasonable grounds advanced for extending such time. 11. However, that was not the end of the matter as the learned trial judge in his judgment went on to determine issues concerning the compatibility of the time limits set down in s.5 of the Act of 2000 with fundamental principles of the law of the European Union. In particular, he examined whether the time limit prescribed in s.5 of the Act of 2000 was compatible with the principles of effectiveness and equivalence of European Union law governing circumstances in which individuals may invoke their rights under Union law before national courts. 12. The learned High Court judge found that the strict time limit provided for by s.5 of the Act of 2000 was incompatible with both the principle of equivalence and the principle of effectiveness under European Union law and accordingly, granted the respondents leave to apply for judicial review. At an early stage in his judgment the learned High Court judge stated:
13. The Minister wished to appeal the decision of the High Court however could not do so unless leave was granted by that Court in accordance with s.5(3)(a) of the Act of 2000. 14. Pursuant to the aforementioned sub-section and by order dated 23rd March, 2011, the learned High Court judge granted leave to the Minister to appeal from his determination, having certified the following point of law as one of exceptional public importance and further, that it was desirable in the public interest that an appeal should be taken to this Court:
15. The issue certified for the purposes of an appeal to this Court concerns the rights of those seeking asylum and refugee status within the State and the application of national procedural rules to proceedings in which a claimant seeks to assert such rights. I think it is convenient, therefore, at this point to refer to the status of the rights asserted by the respondents under the law of the European Union. 16. Historically, the right of the State to determine, in its discretion, the circumstances and conditions in which an alien may be permitted to enter and/or remain in the State has been considered an inherent power derived from its sovereign status. In Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at p.599 Costello J. stated:
17. However, in the last decade or so the law, and in particular European law, governing the rights of aliens to seek asylum or refugee status in Member States of the European Union has undergone some fundamental changes. 18. The right to asylum is now guaranteed by the Charter of Fundamental Rights of the European Union. Article 18 of the Charter provides “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” That is a very clear guarantee of a specific right. The long title to the Act of 1996 states that one of the purposes of the Act is to give effect to the foregoing Convention and Protocol. Although rights and obligations concerning the granting of refugee status are contained in those international instruments, the rights of individuals to apply for refugee status and the obligation of Member States to grant them now find their expression in the law of the European Union, such as in Article 18 of the Charter referred to above. 19. In addition there is Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, O.J. L 304/12 30.9.2004 (“the Qualification Directive”). The first recital of the Qualification Directive states “[a] common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.” At recital 4 of the Qualification Directive it is noted “[t]he Tampere conclusions provide that a Common European Asylum System should include, in the short term, the approximation of rules on the recognition of refugees and the content of refugee status.” 20. Recital 10 states “[t]his Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.” (emphasis added) 21. Recital 17 observes that “[i]t is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.” 22. The Qualification Directive imposes a duty on Member States to grant refugee status to those who qualify as refugees in accordance with the criteria set out in the Directive (see para, 21 of Joined Cases C-57/09 and C-101/09 Germany v. B and Germany v. D [2010] E.C.R. I-10979). Article 13 states that “Member States shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III.” 23. Accordingly, the rights of the respondents to seek asylum and refugee status in the State are now anchored in the law of the European Union, rather than national law. By virtue of the primacy of the law of the European Union, the Oireachtas cannot pass laws denying or limiting the rights of aliens to apply for asylum or refugee status in a manner which would be in conflict with the law of the European Union. 24. Although it is not in issue between the parties, it is important nonetheless to emphasise that the rights which the respondents are seeking to assert are rights which now derive under the law of the European Union, and it is in that light that the issues arising in this appeal fall to be determined. 25. Neither is it contested that the Procedures Directive applies to the processing and determination of the respondents’ application for refugee status and, in relying on that Directive for the purpose of their application for leave to bring judicial review proceedings, they are also asserting rights under European Union law. The Procedures Directive requires, inter alia, that applications for asylum be processed in accordance with specified provisions of it. The Relationship between National Procedural Rules and E.U. Law 27. While the law of the European Union is an integral part of domestic law, so that rights arising under E.U. law may be invoked or enforced by individuals in proceedings before the national courts of the Member States, the procedural autonomy enjoyed by the national courts in such proceedings is well established and was classically stated in the Rewe case (Case C-33/76 [1976] E.C.R. 01989) where the Court of Justice stated at para. 5:
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. … In the absence of such measures of harmoni[s]ation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed. The laying down of such time-limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax-payer and the administration concerned.” (emphasis added) 29. The principle of equivalence requires that a national procedural rule be applied without distinction, whether the right alleged to have been infringed has its source in Community Law or national law, in circumstances where the purpose and cause of action are similar. In short, national procedural rules must not treat the safeguarding of rights under European Union law less favourably than the safeguarding of rights under national law in similar proceedings. (See, for example, Case C-63/08 Pontin [2009] ECR I-10467) 30. The principle of effectiveness means that even where national procedural rules are compatible with the principle of equivalence, they must nonetheless not be such as to render it practically impossible or excessively difficult to assert rights derived from E.U. law before the national courts. (See, for example, Case 268/06 Impact [2008] E.C.R. I-02483, para. 46, and case law cited therein). 31. The requirements of equivalence and effectiveness embody the general obligation on the Member States to ensure judicial protection of an individual’s rights derived from the law of the European Union. Judgment of the High Court 33. For the purpose of determining whether the principle of equivalence had been breached the High Court determined that, in accordance with the principles laid down by the Court of Justice, it was necessary to compare the remedy available to the respondents and the limitations placed on it by the aforementioned section with the remedy, or remedies, available in similar actions at national level for the assertion of rights under national law. In this respect, the High Court concluded that the proceedings brought by the respondents fell to be considered as part of a general category of actions seeking judicial review of administrative decisions. In particular, the learned High Court judge concluded that the appropriate comparator for s.5 of the 2000 Act is the 8 week time limit which applies to a judicial review in planning and environmental matters, rather than the generally applicable time limit in judicial review matters of 6 months. As regards the judicial review sought in the present case, namely in relation to asylum matters, there was, the High Court found, a strong public interest in legal certainty and the speedy determination of such issues in the field of asylum and immigration. It found that similar considerations as regards legal certainty and a speedy determination of issues applied to judicial review in planning and environmental matters where a more favourable 8 week time limit applied. This in the view of the learned trial judge was the appropriate comparator in respect of a similar action for the assertion of rights derived from national law. Accordingly, he concluded that the European law rights relied upon by the respondents in this case were treated less favourably than similar actions relating to rights derived from national law and therefore that the 14 day period imposed by s.5 of the Act of 2000 could not be relied upon by the State as a bar to the bringing of the judicial review proceedings. 34. As regards the principle of effectiveness, the learned trial judge concluded that “[t]he difficulties which asylum seekers are likely to encounter in preparing for litigation governed by a very short time limit are probably at least as great in practice as those identified by the Court of Justice in Pontin in the case of female employees dismissed by reason of pregnancy.” The learned trial judge applied the principles laid down in Pontin (cited above and referred to in more detail later in this judgment), and also found that,factually, the difficulties encountered by persons in the position of the respondents in the instant case were the same or similar to those encountered by the applicant in the Pontin case in which case the Court of Justice determined (subject to a definitive ruling by the national court) that this gave rise to a breach of the principle of effectiveness. The learned trial judge also concluded that the existence of a discretion of the court to extend the time for the bringing of judicial review proceedings in this case beyond the period of 14 days specified was not sufficient to save the provisions of s.5 of the Act of 2000 from being in breach of the principle of effectiveness, even though in the Pontin case there was no such discretion to extend time. This latter view of the learned trial judge was adopted by reference to the approach said to be taken by the Court of Justice in C-456/08 Commission v. Ireland [2010] ECR I-859 (again, referred to in more detail below). The learned trial judge interpreted the approach of the Court of Justice in that case as rendering it unlikely that even a generous power to extend time “will save a time limit whose duration is otherwise, objectively speaking, too short to satisfy the requirements of the principle of effectiveness.” 35. Accordingly, on this ground also he found that the State was not entitled to rely on s.5 of the Act of 2000 as a bar to the bringing of the judicial review proceedings. Summary of Submissions of the Appellants 37. The appellants submitted, in what was described as their primary submission, that not only was an incorrect comparator selected by the High Court but the principle of equivalence does not arise in this case where the clear wording in s.5 of the Act of 2000 is such that it applies not only to challenges to asylum and immigration decisions which are based on European law, but also to challenges based on national law. In short, the wording of s.5 means that if a person affected by one of the decisions listed in that section wishes to challenge it, he or she must comply with the requirement of the section regardless of the grounds upon which the challenge is based. It was submitted, on the basis of the case law of the Court of Justice, that, where an express wording of a provision is such that it applies to the exercise of both national and community rights, the principle of equivalence would not be engaged, or at least would not be breached. It was further submitted as a variation of this primary point that if an appropriate comparator is required to be found in this case the comparator to the cause of action to a challenge to an asylum decision based on European law is a challenge based on a constitutional right by reference to the provisions of the Constitution generally. Any challenge to such a decision on constitutional grounds must also be brought by way of judicial review and is subject to the same procedure and the same limitation period of 14 days as a challenge to such a decision based on European law. 38. It was pointed out that the grounds of challenge in this case could, in principle, have been based on the alleged unconstitutionality of a provision of the Refugee Act, 1996 or a breach of Irish law on fair procedures. In either event the challenge would be based on purely national law provisions. Alternatively a ground of challenge based on a breach of the Procedures Directive, the Qualification Directive, or any Irish provisions implementing those Directives on a challenge that is based on European Union law. In this respect s.5 is totally neutral in its terms and applies to all such challenges regardless of the legal source of the grounds upon which an applicant for relief is relying (see for example Case C-188/95 Fantask, Case C-279/96 Annaldo, Case 246/09 Bulicke - all of which are cited below) 39. Although the submission was expressed so as to assert that the principle of equivalence did not arise or was not ‘engaged’, in substance it is an argument that the comparator can be confined to a claim of a breach of the same E.U. right according as the claim is based on a breach of E.U. law or a breach of national law. 40. Thus, it was further argued that even if the principle of equivalence is ‘engaged’ in the circumstances the principle of equivalence is not breached and the learned trial judge erred in concluding that the time limit for asylum and immigration decisions should be compared to the time limits available in other types of judicial review, and in particular in deciding that the time limits for challenges to planning and environmental decisions was the appropriate comparator. 41. In the further alternative, it was submitted, if a comparator is to be found the appropriate comparator is the procedural rule as applied to constitutional challenges to matters governed by s.5 of the Act of 2000 or the Refugee Act, 1996 itself. 42. As regards the principle of effectiveness the appellants submitted that the learned trial judge incorrectly relied on the conclusion of the Court of Justice in the Pontin case that a 15 day limitation period was in breach of that principle. That was a case in which the claimant claimed that she had been wrongfully dismissed contrary to the provisions of the relevant E.U. Directive which, inter alia, prohibited the dismissal of a worker during pregnancy. It was submitted that the limitation period in the Pontin case applied in different circumstances and in a different context to the limitation rule in these particular proceedings. It was submitted that in the Pontin case of importance was the vulnerability generally of pregnant employees when suddenly faced with dismissal. In addition the 15 day time period ran from the date on which the notice to dismiss was issued and potentially began to run before the person adversely affected even knew of the decision. The expiry of the 15 day time period also created an absolute bar to any legal action for annulment and reinstatement since there was no provision for an extension of time. In any event it was submitted that the difficulties faced by a pregnant worker confronted with a dismissal derived substantially from the fact that she only had 15 days from the first notification that she was facing dismissal to seek legal advice and initiate legal proceedings. In contrast in this case, it was pointed out, that the respondents had the benefit of legal advice throughout the asylum process and the decision pursuant to s.17 of the Act of 1996 came at the end of a series of decisions on the asylum claim. The respondents therefore must be taken to have been aware of the significance of the decisions, legally as well as factually, taken at the various stages of that process which were adverse to them. They had full access to legal advice and there was no evidence whatsoever to suggest that there was any difficulty for them in challenging any of the procedures or the decisions within the appropriate time. 43. It was submitted that there was no evidential or other basis for concluding that the 14 day period rendered the respondents’ access to the courts practically impossible or excessively difficult. 44. In addition it was submitted that the generous provision for the extension of time in s.5 is an additional significant factor following such a conclusion. 45. The appellant also submitted, as regards the principle of effectiveness, that Case C-456/08, Commission v. Ireland (cited below) could not be considered as a basis for concluding that uncertainty as to how a discretion to extend time might be exercised meant that the limitation period of 14 days, already too short in itself to be effective, could be saved by the provision of even a generous basis for extending time for bringing proceedings. The discretion to extend time for the bringing of proceedings beyond a specified limitation time was not the basis, it was submitted, on which Commission v. Ireland was decided. In that case it was a different feature of Order 84A(4) which was central to the decision of the Court of Justice, namely, that the period within which to apply for judicial review was limited to either 6 months or at the earliest opportunity. It was submitted that the point which the Court of Justice was making was that a person affected by a relevant decision would not know whether the relevant period was 6 months or at the earliest opportunity until after the court had decided on its application for leave to bring judicial proceedings. Therefore a party could not be certain as to the time limit required to bring the application in the first place. 46. It was submitted that the case law of the Court of Justice clearly established that the Member States were entitled to impose time limits for the bringing of proceedings, were not bound to apply the most favourable period of limitation to proceedings concerned with the safeguarding of rights under E.U. law and there was no evidence or any other grounds for concluding that the limitation period in this case rendered the respondents remedies practically impossible or excessively difficult. Summary of Submissions of the Respondents 48. In their submissions the respondents emphasised that
- proceedings are confined, in principle, to the examination of the legality of the decision making process; - the effect of the remedy sought is to quash the Minister’s decision as opposed to conferring a substantive benefit of the declaration of refugee status on the respondents. 50. As an alternative argument the respondents, acknowledging that the early establishment of certainty of asylum decisions is a legitimate element to be taken into account, submitted that if a statutory time limit shorter than 6 months is acceptable the learned trial judge was correct in concluding that the appropriate comparator is the 8 week period provided for under s.50 of the Planning & Development Act, 2000, as amended. It was submitted that both limitation periods, s.5 of the Act of 2000 and s.50 of the Planning & Development Act, 2000, share the characteristics of an interest in legal certainty of administrative decisions and in both situations the Oireachtas has prescribed by statute that the validity of such administrative decisions may only be challenged by way of judicial review. 51. It was submitted that the national court is required to take a broad view and examine the range of actions which may potentially be comparable to the action seeking to safeguard a right under E.U. law. The respondents supported the conclusion of the learned trial judge excluding proceedings brought under the Irish Takeover Panel Act, 1997 for the reasons set out in his judgment and that an application for judicial review under s.5 of the Act of 2000 will ordinarily involve consideration of the protection of fundamental rights as opposed to protecting market interests. 52. As regards the appellants submissions the respondents submitted that the right to refugee status is now governed by E.U. law and any grounds for challenging a decision refusing refugee status relate, by definition, to the enforcement of a right under E.U. law. Therefore, it was submitted, such grounds for challenging such a decision, whatever variation those grounds may take, cannot provide an appropriate comparator with national law within the meaning of the principle of equivalence since all grounds relate to the same cause of action - namely, the enforcement of the right to refugee status under E.U. law. In short it was submitted that the principle of equivalence requires a domestic cause of action as a comparator. Therefore, the appellants cannot justify discriminatory treatment of an E.U. law right on the basis that the grounds for enforcing that particular right are treated the same whether those grounds have their basis in national or E.U. law. 53. The respondents submitted in conclusion that the 14 day limitation period was in breach of the principle of equivalence, at the very least when compared to the 8 week time limit provided for the institution of comparative judicial review proceedings under the Planning & Development Act, 2000. 54. As regards the principle of effectiveness the respondents submitted that the appellants could not rely on the power to extend time for the bringing of judicial proceedings under s.5(2)(a) of the Act of 2000, the issue being whether the 14 day limitation period itself complies with E.U. law. The respondents refer to the obligation on Member States to establish reasonable time limits in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interest which must be taken into consideration - Case C-63/08 Pontin (cited above). 55. The respondents acknowledge that the application of the principle of effectiveness depends on the context in which the limitation period was adopted. They relied, inter alia, on the decision in Pontin, as did the learned High Court judge, where a 15 day period for the bringing of proceedings was considered by the Court of Justice to be in breach of the principle of effectiveness. That case concerned a claim of a pregnant worker that she had been wrongfully dismissed during her pregnancy in contravention of E.U. law. The Court of Justice took into account, inter alia, that a pregnant worker is in a vulnerable position and would have difficulties in initiating and bringing proceedings within such a 15 day period. The respondents submitted that asylum seekers are also in a comparably vulnerable position given, inter alia, that they are likely to be dependent on public welfare, unfamiliar with the Irish legal system and may encounter linguistic and other practical difficulty in preparing for litigation. Furthermore, it was submitted, the complexities of the issues of the limitations of the legal aid service may prevent an applicant through no fault of their own from being in the position to proceed within the 14 day period. The respondents refer to the trial judge’s observation that the vast majority of applicants who bring proceedings under s.5 of the Act of 2000 require an extension of time in order to proceed. Decision 57. As already explained, the right to asylum and refugee status is now guaranteed by Article 18 of the Charter of Fundamental Rights of the European Union and Ireland, along with other Member States, has a duty to grant refugee status to those who qualify as refugees in accordance with the criteria set out in Directive 2004/83/EC (the Qualifications Directive). The rights which the respondents seek to assert derive exclusively from the law of the European Union since the State is obliged to give effect to European law and it cannot, by way of legislation or otherwise, deny or limit the rights conferred by the Charter and the relevant Directives given the primacy which is accorded by the Constitution to the law of the European Union. Principle of Equivalence 59. As the Court of Justice has repeatedly stated in its case law it is for the national court alone, which has direct knowledge of national procedural rules, to establish whether the principle of equivalence has been complied with in any particular case in accordance with the guiding principles laid down by the Court of Justice (see para. 28 of Bulicke cited above). 60. The very notion of equivalence necessarily involves a comparison between one form of action and others. That is to say actions for the safeguarding of rights which individuals derive from European Union law on the one hand, and similar domestic actions, namely, actions safeguarding rights derived under national law. (See again, para. 25 of Bulicke and the series of cases referred to in that paragraph of the judgment of the Court of Justice). 61. In the following passages, the Court of Justice in Bulicke restated the manner in which the principle of equivalence should be applied by national courts at paras.25-29:
The principle of equivalence requires that the national rule in question be applied without distinction, whether the infringement alleged is of European Union law or national law, where the purpose and cause of action are similar (Case C-326/96 Levez [1998] ECR I-7835, paragraph 41; Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 55; and Case C-63/08 Pontin [2009] ECR I-0000, paragraph 45). However, that principle is not to be interpreted as requiring Member States to extend their most favourable rules to all actions, such as the case in the main proceedings, brought in the field of employment law (see, to that effect, Levez, paragraph 42, and Pontin, paragraph 45). . In order to establish whether the principle of equivalence has been complied with in the case in the main proceedings, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of employment law, to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see Levez, paragraphs 43; Preston and Others, paragraph 56; and Pontin, paragraph 45). Moreover, every case in which the question arises as to whether a national procedural provision is less favourable than those concerning similar domestic actions must be analysed by the national court by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies ( Levez , paragraph 44; Preston and Others, paragraph 61; and Pontin, paragraph 46).” (emphasis added) 63. Counsel for the appellants explained the basis of this primary submission in stating that any of the decisions concerned could, in principle, have been impugned on the basis of a breach of national law, such as a breach of the Constitution, or fair procedures as required by national law. If any of the decisions in issue were challenged by way of judicial review on the grounds of a breach of national law such proceedings would be subject to the limitation period specified in s.5 of the Act of 2000. Since the same limitation period applies, without distinction, to proceedings by way of judicial review challenging any such decision on the grounds of a breach of European law it cannot be said that rights under European Union law are treated less favourably. Since the limitation period in s.5 of the Act of 2000 has general application it is argued that the principle of equivalence is “not engaged” and the question of a comparator with periods of limitation applying to other proceedings does not arise. 64. In order to examine the implications of this argument, it is necessary to refer to the context or circumstances in which a legal challenge to an administrative decision affecting rights under E.U. law can be grounded on a breach of national law or a breach of E.U. law. 65 Many rights which citizens enjoy solely by virtue of European law are given substantive effect through the enactment and application of national legislation. This is obviously so because provisions of Directives of the Council of the European Union, to take the most frequently used legislative measure, generally speaking do not have direct effect, even though they may confer rights on the citizen. (One can leave aside as not relevant for present purposes the fact that in certain circumstances certain provisions of Directives may have direct effect.) Rights thus conferred must be given effect through national measures. Thus, Member States are under an obligation to give effect to Directives and to achieve their objectives, including the observance of rights and obligations, by means of national legislative measures adopted in accordance with their national constitutional framework. It is therefore always possible, in principle, that an administrative decision binding on an individual citizen and prejudicing their rights under European law could be challenged on the grounds that it was made in breach of the provisions of national law or constitutional law. Accordingly, an administrative decision taken pursuant to a power vested in the decision maker by means of a statutory instrument might be challenged on the grounds that the statutory instrument was ultra vires the parent Act, or that the subject matter of the statutory instrument was such that constitutionally it ought to have been enacted by means of primary legislation adopted by the Oireachtas. Again, as pointed out by counsel for the appellants, it might well be that such a decision could be challenged on the grounds that it failed to apply with fair procedures as guaranteed by the Constitution. 66. If one were to accept the thesis advanced by the appellants it would mean that any procedural limitation on the assertion of rights derived from European Union law would escape scrutiny under the principle of equivalence, since in the vast majority of cases any such procedural limitation would invariably apply to any challenge to a denial of the same particular European right based either on a breach of national law or a breach of European Union law. There would be very few exceptions to that position since it is difficult to envisage a decision denying a right derived under European law not being subject, at least hypothetically, to a potential challenge, either because the manner in which it was taken did not comply with national law or because it was in breach of European Union law. 67. The appellants submit in the first instance that in such circumstances there is no “engagement” of the principle of equivalence, although, it must be said, that this is tantamount to arguing that the comparator is between proceedings based on a breach of national law and proceedings based on a breach of European law, but in respect of a denial of the same right. In fact, in a variation of the same argument this kind of comparator was suggested, i.e., a challenge based on constitutional grounds to the Minister’s decision in this case. 68. Again, if one were to accept that thesis, a Member State could ensure that the proceedings asserting a right to claim asylum (or any particular right derived from E.U. law) were singled out and subjected to stringent procedural restrictions much more unfavourable to the assertion of any right derived under national law, simply on the premise that no matter what grounds are relied upon to claim that the particular European law right has been breached, the same rule applies. 69. This seems to me to be the antithesis of what the principle of equivalence is designed to achieve, namely, that rights derived from European law can be asserted before the courts at national level in circumstances and subject to procedures which are no less favourable than the assertion of rights derived from national law. The whole purpose of the rule of equivalence is “to ensure that rights derived by individuals from Community law are safeguarded under domestic law”. (Case C- 63/08 Pontin [2009] ECR I -10467, at para. 45). 70. In my view counsel for the respondents is correct in the submission that the appellants cannot justify unfavourable treatment of proceedings seeking to assert a right under European law solely on the basis that the different grounds for enforcing the same E.U. right are treated in the same way. 71. It is manifestly clear that when the Court of Justice applies the principle of equivalence it is referring to equivalence between actions to enforce or safeguard rights derived from European Union law and similar or comparable actions to enforce rights derived from national law. As Advocate General Trstenjak pointed out in his opinion in the Pontin case, at para.101, national limitation periods “may not be less favourable than those governing similar domestic applications”. The national court is required to have regard to similar actions asserting rights derived from the national legal order as compared to the action for the enforcement or safeguarding of a right derived from Community law in order to establish, as the court stated at paragraph 46 of the Pontin case, “objectively, in the abstract, whether the rules at issue are similar taking into account the role played by those rules in the procedure as a whole, the conduct of that procedure and any special features of those rules”. 72. It could be said that the Pontin case contains a practical example of the application of those principles, although specific to the circumstances of that case, and the court stated at paras. 55 and 56 as follows:
If it emerges that one or more of the actions referred to in the order for reference, or even other national remedies that have not been put before the Court, are similar to an action for nullity and reinstatement, it would also be for the referring court to consider whether such actions involve more favourable procedural rules.” 73. The Pontin case arose from proceedings at national level concerning the prohibition of dismissal of pregnant workers or workers who had recently given birth or are breast feeding, as laid down in Directive 92/85/EEC and related to procedural rules specific to that cause of action at national level. In that case the issue of equivalence fell to be determined by comparing those specific procedures with procedural rules governing similar actions under national law for rights arising under the national labour code generally. At no stage did the Court of Justice consider that the principle of equivalence could be analysed by reference only to actions claiming a particular right derived from Community law and comparing the different grounds upon which that particular right might be asserted in proceedings. 74. In making reference to the simple statement that the principle of equivalence is met, or doesn’t even arise, once the procedural rule applies equally to a claim under national law and a claim under European law, the appellants have ignored the substance of the additional requirement that the Court of Justice has always specified, namely, that regard must be had to similar causes of action at national level. In support of their arguments the appellants referred, for example, to the decision of the Court of Justice in joined cases C-279, C-280, C-281/96 [1998] E.C.R. 1-5025, Ansaldo Energia, case C-188/95 Fantask v. Industriministeriat [1997] E.C.R. 1-6783 and case C-326/96 Levez v. Jennings [1998] E.C.R. 1-7835. At issue in the Ansaldo case, in the context of the principle of equivalence, was the application of an interest rate at 3% applicable to all repayment obligations attaching to the State in respect of fiscal debts. In that case the claim against the Italian State was for the repayment of charges wrongly levelled contrary to Community law. There was a comparator with similar actions under national law in that case, namely, actions for the repayment of charges wrongly levied by the State in breach of national law (unrelated to rights under European law). Again the Fantask case, so far as the principle of equivalence was concerned, concerned a period of limitation of 5 years on the recovery of charges levied in breach of a Community Directive. The point in that case was, as the Danish court made clear, that the right to recover “a whole range of debts becomes statute barred after 5 years”. Thus, in that case actions for the recovery of debts by virtue of rights derived from European Union law was subject to the same limitation period as the recovery of debts arising exclusively under national law. Thus, the comparator was with the limitation period placed on the recovery of debts from the State arising exclusively in the domain of national law. 75. Thus, in each of these cases, and indeed the other cases referred to in the submission of the appellants, the comparison envisaged by the Court of Justice is between the procedural rule as applied to actions asserting a right derived from E.U. law and as applied to actions asserting a right derived wholly under national law. 76. This is particularly evident from the judgment of the Court of Justice and the Opinion of Advocate General Léger in Levez case. The circumstances of that case are analogous to the position in the present case. In Levez the claimant had successfully obtained a ruling from an Industrial Tribunal in the United Kingdom, that her employers had been in breach of the obligation to pay men and women equal pay for equal work. The claimant had been employed as a manager and she was paid less than her predecessor in the same position who was a man. She had been given to understand by her employer when she commenced in the job in February, 1991 that she was being paid the same but only discovered the discrepancy after leaving the post. 77. The Industrial Tribunal concluded that, as and from February, 1991, she was entitled to recover compensation from her employer on the basis of the higher salary which had been paid to the previous manager. The claimant’s right to equal pay for equal work derived in the first instance from the provisions of the United Kingdom Equal Pay Act 1970 (“the Act of 1970”) and also from Article 119 of the EC Treaty, and Council Directive 75/117/EEC on the approximation of laws of the Member States relating to the application of the principle of equal pay for men and women. 78. Section 2(5) of the Act of 1970 provided for a limitation on the period for which compensation could be recovered:
80. The claimant was entitled to make her claim pursuant to the Act of 1970 and she was asserting her rights to equal pay as a right derived under E.U., or the law of the European Communities as it would have been then described. 81. In the proceedings the Government of the United Kingdom emphasised that the limitation period applied to both the remedy based on national law, namely the Act of 1970or a remedy based on E.U. law, namely Article 119 and/or the Directive. 82. Although the Act of 1970 was enacted prior to the United Kingdom becoming a Member State, the Court of Justice noted, at para.48 of its judgment, “Following the accession of the United Kingdom to the Communities, the Act constitutes the legislation by means of which the United Kingdom discharges its obligations under Article 119 of the Treaty and, subsequently, under the Directive. The Act cannot therefore provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence.” In the present case the Refugee Act 1996, as amended, and the process for which it provides, is the means by which the State discharges its obligations under the Charter of Fundamental Rights, and Council Directive 2004/83/EC in relation to asylum applicants. 83. In addressing the principle of equivalence in the context of the Levez case Advocate General Léger first of all pointed out at para. 26:
The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid comparators. Advocate General Mancini, faced with the same problem, speculated as follows in his Opinion in San Giorgio: (7) `[i]n what circumstances can it be said that similarity exists and that therefore different treatment is prohibited?' In the circumstances of that case, he decided on a broad interpretation of the principle of equivalence or non-discrimination: `I would point out in the first place that the prohibition of discrimination is a general principle of Community law and therefore any weakening of that principle by the imposition of limits must be approached with great caution'.”
88. In rejecting the argument of the United Kingdom Government in that case the Advocate General stated, at para. 47 that: “…an action brought under Article 119 of the Treaty are not merely similar, as the United Kingdom Government maintains: their scope is identical, that is to say, they amount to one and the same form of action.” 89. Accordingly, the Advocate General concluded in the next paragraph of his opinion:
91. The Court of Justice in its judgment in that case adopted the approach of Advocate General Léger. At para. 45 it referred to the argument of the United Kingdom Government that “…for the purposes of the principle of equivalence, a claim under the Act … constitutes a form of action under domestic law comparable to an action based directly on Article 119 of the Treaty. Since the Act applies to a whole series of claims concerned with enforcing compliance with the rule of equality of contractual terms, whether or not in relation to pay, it is reasonable for all claims to be subject to the same limitation period. Thus, according to the United Kingdom, the principle of equivalence is complied with.” (emphasis added) 92. At para. 47 of its judgment the Court of Justice in rejecting this submission, concluded “…as the Advocate General rightly pointed out in paragraph 48 of his Opinion, the fact that the same procedural rules - namely, the limitation period laid down by section 2(5) of the Equal Pay Act - apply to two comparable claims, one relying on a right conferred by Community law, the other on a right acquired under domestic law, is not enough to ensure compliance with the principle of equivalence, as the United Kingdom Government maintains, since one and the same form of action is involved.” 93. In the present case the respondents have, inter alia, sought to set aside the decision of the Minister to refuse them refugee status as well as earlier decisions of the Refugee Appeals Tribunal, as doing so they are seeking to assert a right derived under the law of the European Union. Even though that decision may be open to challenge on grounds that the impugned decisions were taken either contrary to national law or contrary to E.U. law, they nonetheless relate to one and the same right derived from European Union law. 94. Having regard to the clear principles laid down by the Court of Justice, I am of the view that the learned High Court judge was correct in rejecting the contention that for the purpose of the principle of equivalence it was sufficient to compare an action for setting aside the decisions in issue based on national law with an action to set aside the same decisions based on E.U. law. 95. In any event, it is clear that the Court has to consider, as the High Court did, what kind of actions should be treated as “similar actions”. That is exclusively a matter for the national court. As the Advocate General and the Court have pointed out, the comparison is between the procedural or other rule (such as a rule governing a right of appeal) as it applies to the exercise of a right derived from E.U. law with the rules “governing the exercise of similar rights derived wholly from domestic law”. (Opinion of Advocate General Léger, Case C-326/96 Levez [1998] E.C.R. I-7837) Comparison with “similar actions” and Section 5(1) of the Act 97. The case law of the Court of Justice makes it clear that while it is in principle for the national court to determine what domestic actions should legitimately be treated as similar actions, it must do so in accordance with the principles laid down by the Court of Justice. 98. The principle of equivalence does not require Member States to extend their most favourable rules to all actions (see for example Levez, paragraph 42). Neither is it sufficient, in my view, for the national court to focus exclusively upon the most unfavourable rule and apply it for comparison purposes to an action based on European Union law. (That is assuming of course that the least favourable rule applies to an action which is in a form which could be considered to be a “similar action”). I think it is clear that the national court is required to make a broad assessment of all similar domestic actions for the purpose of identifying the actions which should be treated as similar for the purposes of applying the principle of equivalence. This is necessary in order to give due substance to ensuring that the assertion of rights derived from E.U. law is not treated in a discriminatory fashion. 99. In the Pontin case, at paragraph 56, the Court of Justice pointed out:
100. As Advocate General Léger in his opinion in the Levez case “The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid comparators.” He went on to cite with approval the opinion of Advocate General Mancini (as he then was) in his opinion in the San Giorgio case that “… the prohibition of discrimination is a general principle of Community law and therefore any weakening of that principle by the imposition of limits must be approached with great caution”. However, before one becomes involved in applying these latter considerations, which might be regarded as principles of judicial policy, the first step is to determine what other domestic actions may legitimately be treated as falling within the notion of “similar actions”. 101. It is no doubt the case that similar actions or remedies for these comparative purposes are often, perhaps more often than not, to be found by reference to similar domestic actions in the same field of law covering the same subject matter, particularly in areas which tend to have their own statutory code, such as family law, employment law, consumer rights or the like. But this is by no means invariably the case and the fact that the remedy to safeguard a right deriving exclusively from national law arises under the same statute as a remedy in respect of E.U. law, or falls within the same broad field of law, or even the same subject matter, does not necessarily mean that the national remedy must invariably be treated, or should be treated, as a similar action for the purposes of applying the principle of equivalence. A deeper and broader analysis is required if the criteria of the ECJ is applied. 102. Nowhere in its jurisprudence has the Court of Justice referred to simply the subject matter as being the test. If that were so it would make the task of the national court much simpler. The criteria set out by the Court of Justice for determining whether a domestic action can be treated as a similar action to one providing a remedy at national level for an E.U. law right are not, by their nature, precise and the task of the national court is not always an easy one. These criteria are summarised at paragraph 106 below and requires a national court to carry out a deeper and broader analysis than subject matter. 103. As regards actions falling within the same subject matter or the same field Slynn L.J., a former Advocate General of the Court of Justice, pointed out in Preston v. Wolverhampton Healthcare Trust [2001] 2 AC, England and Wales 455 “It is not enough to say that both sets of claims arise in the [same] field …”. In that context he also cautioned that one should be careful not to accept superficial similarity as being sufficient for the purpose of the principle of equivalence. The Court of Justice requires the national court to do a greater analysis than simply looking at the same legal norm or subject matter. (See also the Palmisani case and Matra Communications v. Home Office, cited in detail below). 104. Moreover, having identified the range of actions arising under domestic law which may legitimately, in accordance with the criteria of the Court of Justice, be treated as similar actions for the purposes of the principle of equivalence the national court may, as a matter of judicial policy, have to identify within that range of similar actions the action or actions, because of their special features or characteristics, which should most appropriately be treated as a similar for the purposes of the case in question, being guided by the need to give substantive effect to the safeguarding of E.U. law rights without discrimination. 105. This aspect of the national court’s task was commented on by Advocate General Leger in paragraph 30 of his opinion in the Levez case when he stated:
The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid comparators.”
(ii) having regard to both the purpose and essential characteristics of the allegedly similar domestic actions; and (iii) the domestic actions must be analysed by reference to the role of the provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies 107. The current cause of action under consideration by the Court concerns an issue of status. The respondents claim the status of refugees and seek to have that determined in accordance with (i) the law governing qualification of such status, and (ii) the procedures set out in the Procedures Directive. Asylum seekers are entitled to apply for refugee status and entitled to that status once they satisfy the requirements of the Qualifications Directive. Those rights are not affected by the right the State has to control its borders. It is a status which, in the words of the first recital of the Qualifications Directive, entitles them to “legitimately seek protection in the [European Union}”. The issue is not about border controls but about the respondents’ claim to a status in law. Article 13 of the Directive obliges Member States “to grant refugee status” to those who qualify. If entitled to that status they enjoy certain minimum rights within the State. The right to that status, being a Charter fundamental right, is not one which is accorded by the Qualifications Directive or national law. As Recital 14 of the Qualifications Directive declares:
108. A specific aspect of these judicial review proceedings, as pointed out by the learned High Court judge, concerns the observance of minimal procedural standards (the Procedures Directive) so as to guarantee minimum fair procedures in the assertion or claim to that particular status. 109. The foregoing considerations are fundamental to any consideration, in my view, of the purpose and essential characteristics of the respondents cause of action, by way of judicial review, in this case. 110. The purpose of the current proceedings is to obtain an order, by way of judicial review, setting aside an administrative decision denying to the respondents that status and to ensure that any decision concerning that status is not taken in breach of minimum procedural standards designed to safeguard the respondents’ fundamental right to that status. 111. Where the right of a citizen, or in this case an asylum seeker, to a particular status (marital or parental would be two examples in the case of a citizen) and which moreover is recognised as involving a fundamental right, have been adversely affected by a legally binding administrative decision, the lawfulness of which he or she wishes to challenge, one of the remedies available, and the most frequently availed of, (and in this case the only remedy) is to apply to the courts to have the decision set aside by way of judicial review on the grounds of its unlawfulness. One of the central and common characteristics of judicial review is that, in principle, the proceedings are concerned not with the merits of the decision but with the lawfulness of the process resulting in that decision. It is also a procedure by which matters in dispute can normally be brought before the courts more expeditiously than in proceedings commenced by summons, such as plenary summons. 112. Having regard to the principles and guidelines laid down by the Court of Justice I am of the view that the learned High Court judge was correct when, at paragraph 26 of his judgment, he pointed out that the case law of the Court of Justice required a broad approach and stated:
114. The learned High Court judge did, in fact, go on to conclude that there was such a sub-category which, by reason of a particular characteristic related to public policy, should be treated as similar actions for the purpose of applying the principle of equivalence in this case. However, I will address that particular aspect of the learned trial judge’s judgment at a later stage in this judgment. Before doing so it is necessary to consider whether there are other forms of domestic action, by way of judicial review, not referred to by the learned High Court judge in his judgment (nor by the appellants in their submissions to this Court) which could be treated as similar actions, and if so whether that means that the limitation period at issue in this case does not breach the principle of equivalence. Overview of Other Actions Arising Under Section 5(1) of the Act of 2000 116. Obviously the ministerial decisions concerning the respondents claim to refugee status are matters that come within s.5(1). As previously stated, these concern a fundamental right to a status guaranteed to be assessed pursuant to the minimum procedural standards under European Union law. 117. On the other hand there are matters referred to in sub-section 1 which do not concern rights derived under European Union law but decisions taken exclusively on the basis of national law. Judicial review proceedings seeking to set aside such decisions are subject to the same 14 day limitation period. They affect aliens only. Aliens for present purposes mean foreign citizens or stateless persons who have no personal status entitling them to enter or remain in the State. They may be contrasted with foreign citizens of E.U. of E.E.A. status and persons who are asylum seekers. The latter have a right to enter and remain in the State for the purpose of pursuing their claim. The right of asylum seekers to do so derives from the Charter and, inter alia, Articles 2, 3, 6 and 7 of the Qualifications Directive. As persons with the status of asylum seekers they cannot be the subject of purely national law governing the entry or refusal of entry of persons to the State for the purposes of controlling our borders.
118. These other matters in s.5(1) which involve decisions based exclusively on national law concern decisions affecting aliens only for the purpose of what may broadly speaking be categorised as controlling the borders of the State. They are to be differentiated from decisions, such as the decision in this case, affecting foreigners who are asylum seekers, since asylum seekers have a particular status and particular rights vested in them by virtue of the Charter on Fundamental Rights, the Qualifications Directive and the Procedures Directive, as outlined earlier in this judgment. 119. I refer to “other” matters governed by s.5(1) (which falls to be interpreted in the light of the sub-section 2) because the long list of decisions, notifications or other orders referred to in that sub-section relate to two distinct categories of persons. These are:
(b) Asylum seekers: An asylum seeker is a foreign national (non-E.U. or E.E.A.) or stateless person who has made an application for asylum and in respect of which a final decision has not yet been made. (Article 2, Qualifications Directive). Every such adult person has a right to make an application to the State for asylum on his or her own behalf (Article 6). They must be allowed to remain in the Member State until their application for asylum has been determined (Article 7). They have a right to seek refugee status and must be granted that status as a fundamental right if they qualify. All of these rights vest in the asylum seeker to make an application in the State and remain in the State until the application is determined and are so vested in them by virtue of E.U. law. They can only fall into the category of “aliens” when their application for asylum has been heard and determined in accordance with the Qualifications Directive and the Procedures Directive, and the application has been refused. Even when refused, any such decision must be “subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty” and a right to such a remedy “reflects a basic principle of community law” (Recital 27 of the Qualifications Directive). 121. In summary, as will be seen from s.5(1) the decisions referred to in it relate to two categories of persons:
(b) Those who are entitled, as of right, to enter the State and claim a legal status in the State. These are stateless persons or foreigners who are asylum seekers. As I explain later in this judgment based on those essential differences I consider judicial review proceedings brought by asylum seekers claiming a status in society must be treated as different in subject matter, object and purpose than judicial review proceedings brought by an alien who is not entitled to seek any status as such in society in the State. 122. Accordingly, a reference to aliens in this context is a reference to foreign nationals who are not citizens of a member state of the E.U. or of countries comprising the E.E.A. nor a foreign national seeking asylum in the State. It is only when an asylum seeker has had his or her application for refugee status refused in accordance with the Qualifications Directive and the Procedures Directive that the status of an asylum seeker is lost and he or she may be treated as an alien in the sense referred to above. 123. At this point it might be relevant to note that while the appellants’ written submissions made a general reference to the limitation period of 14 days applying to all matters covered by s.5(1) they never actually argued that the matters referred to in that sub-section regarding decisions concerning aliens only, based on national law alone, should be treated as similar actions or comparators for the purposes of applying the principle of equivalence in this case. The appellant, in fact, focused on the appropriate comparator as being a challenge to the Minister’s decision on asylum status based on constitutional or other provisions of national law as outlined earlier in this judgment and, which for reasons already explained, cannot be treated as a similar action in that context. Indeed, in this appeal when challenging the similar actions identified by the learned High Court judge for comparative purposes the appellants did not argue for other similar actions under s.5(1) but focused again on judicial review of the same decision based on constitutional or national law. The respondents, on the other hand, have not addressed any argument related to the possibility that the other matters in s.5(1) could be considered to be similar actions for these purposes since that argument was never raised by the appellants. However, since I conclude that these matters should not be treated as similar actions for such purposes there is no prejudice to the respondents in that respect. Section 5(1)
(a) a notification under section 3(3)(a) of the Immigration Act, 1999, (b) a notification under section 3(3)(b)(ii) of the Immigration Act, 1999, (c) a deportation order under section 3(1) of the Immigration Act, 1999, (d) a refusal under Article 5 of the Aliens Order, 1946 [as substituted by s.10 of the Immigration Act 2003], (dd) a refusal under section 4 of the Immigration Act, 2004, [as inserted by s.16(6) of the Immigration Act 2004], (e) an exclusion order under section 4 of the Immigration Act 1999, (f) a decision by or on behalf of the Minister to refuse an application for refugee status or a recommendation of an Appeal Authority referred to in paragraph 13 of the document entitled “Procedures for Processing Asylum Claims in Ireland” which, as amended, was laid by the Minister for Justice, Equality and Law Reform before the Houses of the Oireachtas in March 1998, (g) a recommendation under section 12 (as amended by section 11(1)(h) of the Immigration Act, 1999) of the Refugee Act, 1996, (h) a recommendation of the Refugee Applications Commissioner under section 13 (as amended by section 11 (1)(i) of the Immigration Act, 1999) of the Refugee Act, 1996, (i) a decision of the Refugee Appeals Tribunal under section 16 (as amended by section 11(1)(k) of the Immigration Act, 1999) of the Refugee Act, 1996, (j) a determination of the Commissioner or a decision of the Refugee Appeals Tribunal under section 22 (as amended by section 11(1)(p) of the Immigration Act, 1999) of the Refugee Act, 1996, (k) a refusal under section 17 (as amended by section 11(1)(l) of the Immigration Act, 1999) of the Refugee Act, 1996, (l) a determination of an officer appointed under section 22 (4)(a) of the Refugee Act, 1996, (m) a decision of an officer appointed under section 22 (4)(b) of the Refugee Act, 1996, or (n) a decision under section 21 (as amended by section 11 (1)(o) of the Immigration Act, 1999) of the Refugee Act, 1996,
126 In relation to section 5(1), subsection (f) is now obsolete but subsections (g) to (m) clearly deal with matters which are related to refugees and accordingly, now are matters which involve the implementation of the law of the European Union. However, on their face, subsections (a) to (e) including the inserted subsection (dd) deal with immigration matters more generally. Thus for example section 3 of the Immigration Act 1999 deals with deportation orders generally. The first provision covered by section 5(1) is section 3(3)(a) of the Immigration Act 1999 which sets out the provisions whereby the Minister must notify the person concerned of his proposal to deport him or her. The next provision which is specified under section 5(1)(b) is section 3(3)(b)(ii) of the same Act which deals with the notification given after representations in writing may have been made to the Minister after receipt of a notification under section 3(3)(a). A deportation order proper is made under section 3(1) of the Immigration Act 1999 which permits the Minister by order to require “any non-national” specified in the order to leave the State. That is covered by section 5(1)(c) of the 2000 Act. Such deportation order, like the notification procedures provided for in section 3(3)(a) and 3(3)(b)(ii) of the 1999 Act, is of course often applied in the field of asylum but these provisions are on their face, of general application and apply not just to persons who have sought asylum, but also to all other persons whom it is sought to deport from the State. This is clear from the broad terms of section 3(2) of the Immigration Act 1999 which provides:-
(a) a person who has served or is serving a term of imprisonment imposed on him or her by a court in the State, (b) a person whose deportation has been recommended by a court in the State before which such person was indicted for or charged with any crime or offence, (c) a person who has been required to leave the State under Regulation 14 of the European Communities (Aliens) Regulations, 1977 (S.I. No. 393 of 1977), (d) a person to whom Regulation 19 of the European Communities (Right of Residence for Non-Economically Active Persons) Regulations, 1997 (S.I. No. 57 of 1997) applies, (e) a person whose application for asylum has been transferred to a convention country for examination pursuant to section 22 of the Refugee Act, 1996, (f) a person whose application for asylum has been refused by the Minister, (g) a person to whom leave to land in the State has been refused, (h) a person who, in the opinion of the Minister, has contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State, (i) a person whose deportation would, in the opinion of the Minister, be conducive to the common good.” 128 This is also clear from the provisions of the substituted subparagraph (d) of section 5(1) of the 200 Act which relates to a refusal under the Aliens Order 1946. That provision relates to admission of “aliens” and contains the restrictions on landing of aliens. Article 5(1) of the Order provides that:
129 The foregoing account, which is not exhaustive, of the matters referred to in s.5(1) is intended to be illustrative of the fact that it encompasses decisions or the like affecting two categories of persons, namely, aliens, as defined, and asylum seekers. Judicial review applications by aliens arise exclusively in the domain of domestic law whereas those affecting asylum seekers concern status rights under E.U. law. 130. Thus, judicial review may be brought by aliens, in the sense referred to at paragraph 109 above, seeking to set aside a decision referred to in s.5(1) which legally affects them. However, such aliens under national law are different from that of asylum seekers in whom certain fundamental rights, including procedural rights, are vested under E.U. law. Aliens on the other hand have no status as such, no vested or inherent right as such to enter or to remain within the State except in accordance with the privileges accorded to them by the State in the exercise of its sovereign discretion. “[The] State … must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and their activities within the State.” This statement of the law by Costello J. in Pok Sun Shum v. Ireland, approved on several occasions by this Court,[1986] ILRM 593, at 599, reflects an inherent element of state sovereignty over the circumstances in which aliens may be permitted, if at all, to enter the State and the conditions under which they may be permitted to remain in the State temporarily or otherwise, long recognised in both domestic and international law. 131. “For this reason, in this sphere of immigration, its restriction or regulation, the non-national or alien constitutes a discrete of category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, in many of its aspects, could not, be applied to its citizens”. (emphasis added) So stated by this Court in its judgment In the Matter of Article 26 of the Constitution and the Illegal Immigrants Trafficking Bill, 1999 [2000] 2 IR 360 at 382. Consequent upon the guarantees contained in the Charter of Fundamental Rights of the European Union it may also be said that aliens may be subject to measures which would not, and in many aspects, could not, be applied to foreigners who have the status in the State of asylum seekers. 132. In Osheku v. Ireland [1986] I.R. 733 Gannon J. referred to the control of aliens being an aspect of the common good “related to the definition, recognition, and the protection of the boundaries of the State.” In Laurentiu v. Minister for Justice [1999] 4 I.R. 42 at 90, Keane J. stated:
133. On the other hand it is worth repeating that rights asserted by an asylum seeker has the purpose of claiming a status as an autonomous fundamental right guaranteed by Article 18 of the Charter. Moreover, the Qualifications Directive (cited above) also expressly states, at Recital 10: “In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.” Indeed, the preamble to the Qualifications Directive makes clear (at Recital 14) that the “recognition of refugee status is a declaratory act” of a pre-existing right. (see also, for example, F.A. (Iraq) v. Secretary of State for the Home Department, Supreme Court, U.K., 25 May 2011). Aliens, in the sense of referred to have no such pre-existing or vested rights or status and in judicial review proceedings the assertion of such rights is not a purpose which can be pursued. Although it might be said that all the matters referred to in s.5(1), both those relating to aliens and those relating to asylum seekers, fall within the broad area or field of immigration law, aliens, as this Court has stated, are a “discrete category of persons”. They are in substance two different areas of law. The rights given to asylum seekers pursue quite different objectives. The European Union common policy on asylum is, according to Recital 1 of the Qualifications Directive, “… a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.” Accordingly it seeks to give “appropriate status to any person in need of such protection.” (Recital 5) (emphasis added) Recital 9 expressly states that “third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive.” 134. Having regard to all the foregoing circumstances it seems to me that decisions and related matters which are referred to in s.5(1) of the Act of 2000 which affect aliens are decisions taken for the purpose of controlling the State’s borders and are done in the exercise of the sovereign right of the State to exclusively control those borders. On the other hand, the decisions and related matters referred to in s.5(1) which affect asylum seekers has as its purpose the recognition of the autonomous and vested rights of asylum seekers, independent of the State, to seek and obtain the status of refugee as a fundamental right. These judicial review proceedings are not about the control of borders by the State exercising its sovereign powers in that regard. If judicial review proceedings brought by aliens in respect of any of the matters referred to in s.5(1) could be considered similar actions, and there were no other similar actions to be taken into account, then the principle of equivalence would not be breached since the 14 day limitation period applies to all judicial review proceedings concerned. 135. However, asylum seekers fall into a distinct and separate category having their own genre of rights and in particular to seek a particular status. The essential nature and purpose of the proceedings brought by asylum seekers is different. The mere fact that they might in a very broad sense be said to fall within the notion of immigration or are all referred to in s.5(1) cannot of itself mean that they should be treated as similar actions for the purposes of the principle of equivalence. 136. Therefore, simply because s.5(1) includes matters which govern statutory decisions which may control the entry of aliens into the State or the circumstances in which they may be allowed or refused permission to remain in the State and the rights of asylum seekers might be said to fall within some very broad concept of immigration law does not mean that that of itself would justify judicial review in respect of such matters being treated as comparable “similar actions” for the purposes of applying the principle of equivalence as laid down in E.U. law. (See the statement of Slynn L.J. in Preston v. Wolverhampton Healthcare Trust [2001] 2 AC 455, cited above. In that context it will be recalled he also cautioned that one should be careful not to accept superficial similarity as being sufficient for the purposes of the principle of equivalence.) 137. The case of Palmisani v. INPS (C-261/95, 10 July 1997) may be said to be an example of one in which proceedings concerning the same subject matter were considered by the ECJ not to be comparable as similar actions. In that case the claimant sought damages against the Italian State for losses sustained by her as a result of the belated transposition of Council Directive 80/987/EEC relating to the protection of employees in the event of insolvency by their employer. Belatedly, Italy introduced an implementing national law by way of a specific Decree. For this purpose the Decree provided remedies for persons exercising rights to claim loss of remuneration or pension rights from a specified fund where they had suffered such loss arising from the insolvency of their employer. The Directive is intended to guarantee employees a minimum level of protection in the event of insolvency of their employer and to that end provides in particular for specific guarantees of payment of outstanding claims of, inter alia, remuneration or pension rights. In addition to providing remedies in accordance with the Directive, the Decree also provided a remedy by way of a claim for damages against the State, Italy, for those employees who had sustained loss prior to the passing of the Decree as a result of the non-transposition Italy of the Directive. This was to compensate them for being unable to exercise their rights under the Directive due to its non-transposition when their employers became insolvent. All these remedies were provided for under the same national Decree and related to rights of employees derived from the Directive. 138. That Italian Decree laid down a time limit of 1 year within which actions must be brought for the following claims:
(b) Applications claiming damages for compensation arising from the non-transposition of the Directive, as a result of which employees had not been able to claim such entitlements.
141. While the circumstances of the Palmisani case are not directly referable to the circumstances of this case, nonetheless the fact that remedies with different objectives provided for in the same Decree relating on the one hand to rights under the duly implemented Directive, and on the other hand for damages arising from the prior failure to implement the Directive (and even though broadly speaking of the same subject matter) did not mean that the former could be treated as similar actions as the latter for the purposes of the principle of equivalence. 142. In my view the proceedings now before the Court pursue a different objective to any proceedings brought by an alien. The objective of these proceedings concern the obligation of the State to accord refugee status to asylum seekers. Judicial review proceedings brought by aliens have a different objective related to exercise by the State of its sovereign powers to control entry to the State, and the conditions for that, of aliens with no personal right of entry. 143. The purpose of the proceedings in this case is to claim an autonomous right to a status, refugee status, which is a fundamental right. In short, these proceedings are not about controlling borders but about a right to a status guaranteed by the Charter. 144. It is also important to bear in mind that a substantial part of the respondents’ application for judicial review in this case concerns the alleged incompatibility of our statutory asylum procedures with the minimum standards laid down in the Qualifications Directive which, as noted earlier in this judgment, it was commonly agreed that the respondents had a substantial case to make. The purpose, or objective, of these proceedings, therefore, is both the assertion of a fundamental and autonomous right to a status and a claim to proper procedures, in accordance with E.U. law, which were laid down expressly for the purpose of protecting that fundamental right. In the Court of Appeal in England and Wales in Matra Communications v. Home Office [1999] 1 WLR 1646 Buxton L.J. observed “… the principle of equivalence really does mean what it says. The domestic court, in applying the principle, must look not merely for a domestic action that is similar to the claim asserting Community rights, but for one that is in juristic structure very close to the Community claim. It does that, in the words of the Court of Justice in Levez … by considering ‘the purpose and the essential characteristics of allegedly similar domestic actions’.” (emphasis added). I agree with those observations, reflecting as they do the substantive nature of the approach which must be followed in applying the principle of equivalence. Simply because there is some similarity between the rights claimed, or because the rights fall broadly into the same field, it does not follow that the principle of equivalence comes into play. The purpose and essential characteristics of the various actions must be considered. In our national law a claim in judicial review proceedings to a personal status or fundamental rights vested in claimants by virtue of their status as guaranteed by the Constitution are not the subject of a 14 day limitation period. The purpose of the present judicial review proceedings is to ensure that the State observes the minimum procedural standards laid down by the Procedural Directive and thereby vindicate a fundamental right to claim the status of refugee as an asylum seeker who “legitimately seek protection in the community”. (Recital 1 of the Qualifications Directive). 145. Further, if one examines that juristic structure, the claims which aliens are entitled to made by way of judicial review and their purpose are quite different from the role and purpose of claims made by those with the status of asylum seekers. 146. Since the purpose and also the essential characteristics of the judicial review in this case are, in my view, quite different from those which could arise in judicial review proceedings brought by an alien I conclude that those other matters referred to in s.5(1) affecting aliens do not constitute a legitimate basis for comparison as “similar actions”. Policy Considerations 148. To recall again the statement of Advocate General Leger at paragraph 30 of his opinion in the Levez case:
The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid comparators.” 150. Independent of that consideration I am also inclined to the view that the State has chosen to impose a particularly burdensome procedural rule on aliens, as it is entitled to do, even though they may be treated more disadvantageously than others seeking judicial review. To adopt the procedural rule applying to judicial review concerning aliens as a comparator would be to import into the protection of E.U. rights such a disadvantageous and burdensome regime and result in an unwarranted weakening of the principle of equivalence as cautioned against by Advocate General Mancini (cited at paragraph 84 above of the judgment). 151. In all those circumstances I would apply the procedural rule which operates in relation to judicial review generally as the appropriate comparator in this case for the purpose of equivalence. Since that period is 3 months and the period in this case is 14 days that inevitably leads to the conclusion that there is a breach of the principle of equivalence in this case. The High Court Decision on this Issue 153. However, he then proceeded to examine whether within the category generally of judicial review actions there was a discrete sub-category which could be more appropriately and properly identified as similar actions for the purpose of applying the principle of equivalence in this case. He identified three particular proceedings for judicial review as constituting appropriate comparators in this case on the basis of the particular characteristics and role of the limitation period in those cases - criteria referred to by the Court of Justice in its case law. He excluded the 7 day limitation period prescribed by the Irish Takeover Panel Act, 1997 (Section 13(3)(a)) being effectively sui generic, for reasons with which I agree. What he identified as appropriate comparators were judicial review proceedings brought in relation to certain decisions made under the Environmental Protection Agency Act, 1992, the Planning and Development Act, 2000 and the Development (Strategic Infrastructure) Act, 2006. Judicial review under those three Acts are subject to a time limit of 2 months as compared to a limitation period of 6 months which was applicable to judicial review generally at the time of the High Court decision. In all of these cases he concluded that the shorter time limit of 2 months, as compared to 6 months, was imposed because there was a particular and legitimate public interest in ensuring that judicial review proceedings under those statutes were disposed of with particular expedition. He correctly pointed out that with regard to decisions concerning asylum matters there was also a legitimate public interest in expeditious disposal of any judicial review proceedings, as indeed as this Court stated in Re Article 26 and The Illegal Immigrant (Trafficking) Bill, 2000 (cited above). 154. While in my view the learned High Court judge was undoubtedly correct in the first step which he took, namely, to conclude that judicial review proceedings generally were similar actions to the present judicial review proceedings, there was some substance in the approach which he took in identifying the foregoing sub-category of proceedings as being the more appropriate comparators for the purposes of this case. However, that was in circumstances where the difference between the two limitation periods was of real significance, 2 months and 6 months. Now the limitation period which applies to judicial review generally is only 3 months. The difference between a 2 month and 3 month limitation period (with provision in each instance for discretionary enlargement in certain circumstances) is small and not, in my view, of any real significance in expediting the hearing of judicial review proceedings given the length which those proceedings in any event and invariably take. Of course, if he was correct there would still remain a breach of the principle of equivalence as between the limitation period of 2 months and the mere 14 day period which applies to the present proceedings. 155. However, given the effectively minimal difference between the 2 month period and the general 3 month limitation period I think it is unnecessary and disproportionate in the current circumstances to make precisely the same comparison of similar actions as the learned High Court judge. Since the general limitation period of 6 months has been amended to 3 months in the meantime the learned trial judge’s approach does not affect my conclusion above that the limitation period of 3 months which applies to judicial review generally is the appropriate comparator for the purposes of determining whether the 14 day period in this case is in breach of that principle. Hence my conclusion that the learned High Court judge was correct in concluding that the principle is breached in this case. Principle of Effectiveness 157. The learned trial judge then went on to conclude in his next paragraph “[i]n these circumstances, therefore, I consider that s.5 of the 2000 Act fails the principle of effectiveness identified by the Court of Justice in Pontin.” 158. I will return to consider what led the learned trial judge to that conclusion, but first of all at this point I think it appropriate to recall the terms in which the Court of Justice has stated the principle of effectiveness. The Court of Justice has always acknowledged the autonomy of the Member States in determining their own procedural rules governing proceedings before a national court, but its underlying concern is to ensure that nonetheless the exercise of rights conferred by European Union law should be safeguarded at national level, and this means that there must be an effective remedy at national level where such rights have been unlawfully denied or breached. 159. Again, the principle of effectiveness has been stated and restated by the Court of Justice in its case law over the decades. More recently, for example, in the Bulicke case it stated, at para. 25:
It is settled case-law that the laying down of reasonable limitation periods for bringing proceedings satisfies, in principle, the requirement for effectiveness inasmuch as it constitutes an application of the fundamental principle of legal certainty (see Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 28; Preston and Others , paragraph 33; Case C-255/00 Grundig Italiana [2002] ECR I-8003, paragraph 34; and Kempter , paragraph 58). Such time-limits are not liable to render practically impossible or excessively difficult the exercise of rights conferred by European Union law (see Grundig Italiana , paragraph 34; Kempter , paragraph 58; and Pontin , paragraph 48). With that reservation, the Member States remain at liberty to fix longer or shorter limitation periods (Case C-30/02 Recheio - Cash & Carry [2004] ECR I-6051, paragraph 20). As regards limitation periods, the Court has also held that, in respect of national legislation which comes within the scope of Community law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration (see Pontin , paragraph 48).” 162. It is also to be noted that in this case the respondents have at no stage claimed or asserted that the limitation period inhibited or restricted their ability to initiate these proceedings in a more timely fashion. 163. Although not directly applicable in this case it would, perhaps, be remiss not to mention that the compatibility of the s.5 14 day limitation period with a constitutional right of access to the courts was raised and considered by this Court in the case of In the Matter of Article 26 of the Constitution, And In The Matter of Sections 5 & 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. In that case counsel assigned by the court had argued that the 14 day period was so short as to render it extremely difficult for a party to prepare and initiate a claim for judicial review within the time allowed, and thus constituted, in substance, a denial of access to the courts. The Court rejected that submission for reasons set out in its judgment and in the course of its judgment it pointed out at p. 391 “…that a person who is the subject of a deportation order will have become aware in the course of the extended processing of his or her application that he or she is on real risk of becoming the subject of a deportation order. In addition, the person concerned will in the vast majority of cases have received almost three weeks notice of the intention to make the deportation order.” The Court also determined at pp.393-394 that “…the discretion of the court to extend the time to apply for leave where the applicant shows ‘good and sufficient reason’ for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period.” Indeed, the Court in the course of its judgment acknowledged “Where a limitation period is so restrictive as to render access to the courts impossible or excessively difficult it may be considered … to be unreasonable, and therefore unconstitutional.” 164. The Court concluded that the limitation period with provision for its extension was not an unreasonable restriction on access to the courts and its incompatibility with the Constitution was not established. 165. Of course that was a decision on the compatibility of the s.5 provision of the Act of 2000 with the Constitution in a matter which was referred to the Court by the President pursuant to Article 26 of the Constitution. It means, of course, that the decision on the constitutionality of the section cannot be revisited. However, the decision does not have a direct bearing and certainly does not govern the outcome of this case since, obviously, here we are considering the compatibility of the limitation period with a general principle of European Union law, namely, the principle of effectiveness. 166. Moreover, the decision in the Article 26 reference, like all such decisions, was not made in the context of a concrete factual case in which an actual violation of the Constitution was claimed to have occurred, but on the basis of various hypotheses advanced by counsel assigned by the Court and by counsel for the Attorney General. Accordingly, in different proceedings and for different purposes the Court would not, in a particular case, be precluded from coming to a finding of fact on evidence in such a case which differed from a finding of a fact accepted or assumed in an earlier Article 26 reference. 167. In short, anything stated in the judgment in the Article 26 reference concerning the Illegal Immigrants (Trafficking) Bill 1999 would not, of itself, preclude the Court from finding in this case that the limitation period contained in s.5 of the Act of 2000 rendered the exercise of a right derived under European Union law practically impossible or excessively difficult in applying the principle of effectiveness as expressed by the Court of Justice. I should add that it has not been suggested by either party in this case that the Court could be so precluded. 168. As noted above, an examination of the limitation period imposed by s.5 of the Act of 2000 in this case must, according to the Court of Justice, be analysed, inter alia, by reference to the role of that provision in the national procedure, its conduct and special features viewed as a whole before the various national bodies. 169. For that purpose I think it is relevant to refer to certain factual aspects of this particular case. As already stated, the respondents did not advance in the High Court any reason for not bringing their application within the time prescribed, other than saying, as the learned High Court judge pointed out, that they were dependent on their former legal representatives. Otherwise, as he noted at para. 6, “no explanation has been offered for the very considerable delay which has taken place in the interval.” It was also found as a fact in the High Court that the respondents had access to legal advice from the outset through the Refugee Legal Service. On the 12th May, 2009 they were notified that the Refugee Applications Commissioner was recommending that they would not be declared refugees. That was appealed and the respondents were notified of the decision of the Refugee Appeals Tribunal to affirm the recommendation of the Commissioner on 30th July, 2009. Then on 29th August, 2009 the Minister informed the respondents that he was refusing their application for refugee status and that he proposed to make a deportation order in respect of them. An application was then made on behalf of the respondents for subsidiary protection and this was refused on 2nd March, 2010. The deportation order was made on 9th March, 2010, and the respondents were notified of the making of these orders on 16th March, 2010. 170. Accordingly, from a practical point of view, the respondents and their legal advisors had been aware for a considerable period of time of decisions adverse to their claim for asylum and of the basis on which such decisions were made, and, in particular, from the 29th August, 2009 when the Minister informed them that he was refusing their application and that he proposed to make deportation orders. Thus, the respondents and their legal advisors were in a position to identify any legal issues arising from and in that process which could be a ground for a possible challenge to the validity of the relevant decision. 171. The limitation period of 14 days from the 16th March, 2010, the date on which they were notified of the actual making of the deportation orders, must be viewed in that context. This is true not only in the particular circumstances of the case but in these cases generally where, as mentioned above, applicants for refugee status generally will have been directly engaged, with the benefit of legal aid, in the whole process leading up to the ultimate decision of the Minister who must give them effectively three weeks notice of his intention to make deportation orders. 172. In the foregoing context and in the absence of any evidence, or even assertion, by the respondents that there was any particular difficulty in complying with the period laid down in s.5 of the Act of 2000, one cannot conclude as a fact that the limitation period in this case rendered the respondents access to a judicial remedy practically impossible or excessively difficult. 173. The learned trial judge’s conclusion nonetheless, that the limitation period provided by s.5 of the Act of 2000 must be treated as being in breach of the principle of effectiveness, appears to be based on a more abstract analysis of the limitation period in the light of certain statements of the Court of Justice in the particular cases to which he referred. 174. First of all he considered that the difficulties which asylum seekers are likely to encounter in preparing for litigation governed by such a very short time limit “are probably at least as great in practice as those identified by the Court of Justice in Pontin.” 175. At this point I have to say that I depart from reasoning of the learned High Court judge in this respect. The pertinent facts of the Pontin case are that Ms. Pontin was dismissed by her employer while she was pregnant which she claimed was in breach of Directive 92/85 and the national implementing measures, which prohibited the dismissal of workers during the period from the beginning of their pregnancy to the end of the maternity leave. The Directive expressly required Member States to provide judicial redress for any breach of the employers’ obligations created by the Directive which the Court noted (at para. 41) constituted a specific expression, in the context of that Directive, of the principle of effective judicial protection of an individual’s rights under Community law. 176. The only remedy available to Ms. Pontin was an action for nullity of the dismissal and reinstatement. 177. The relevant period within which such an action had to have been brought was 15 days. The Court of Justice noted that the 15 day period of limitation began to run from the time that the letter of dismissal was posted by the employer. Accordingly, it also noted “… some of the days included in the 15 day period may expire before the pregnant woman receives her letter of dismissal and is thus notified of the dismissal.” 178. On the facts in that case Ms. Pontin’s letter was sent on the 18th January and received on 22nd January, thus reducing below the 15 days the period within which she had available to her to initiate proceedings. In any event, what the Court of Justice emphasised in Pontin was that it would very difficult for a female worker dismissed during her pregnancy to obtain proper advice and, if appropriate, prepare and bring an action within the 15 day period. The Court of Justice also noted that a claimant in an action for nullity and reinstatement is required to be brought to a specific forum, namely, the “President of the Court exercising jurisdiction in employment matters” and that this requirement had been given a particularly strict interpretation likely to have “unfavourable consequences for the individual concerned particularly in view of the specially short time limit for bringing the action, making it difficult to obtain advice or assistance from a specialist legal advisor.” In that particular case the national court declined to hear an application from Ms. Pontin on the grounds that she had failed to apply to the President of that Court for a declaration that her dismissal was null and void even though Ms. Pontin, who was not represented at the time by a lawyer, had sent her application in the form of a letter to the “Tribunal du Travail - for the attention of the President and his fellow judges” and, as the Court of Justice noted, had begun her written observations with the salutation “Mr. President”. Nonetheless, the national court declined jurisdiction. 179. Of further relevance to the decision of the Court of Justice was the fact that there was no scope for extending the time for the bringing of such a claim on any grounds. 180. Thus, the Pontin case presents a pregnant employee who learns of her dismissal and the grounds of her dismissal for the first time by post will have at the most 15 days, and possibly less, in which to bring a claim in a particular way to a particular forum. For those purposes she will have to seek specialist legal advice and prepare and bring an action within that short time limit. Her dismissal is a wholly new event for the pregnant employee and she has to confront and deal with her problem of dismissal for the first time within that 15 day period. 181. In contrast, as has been outlined above, the respondents in this case had the benefit of professional legal advice from the very beginning when their application for asylum went before the Applications Commissioner right through the appeal process and up to and including the time when the Minister informed them in August, 2009 that he was refusing the application for refugee status and proposed to make a deportation order. These deportation orders were not ultimately made until March, 2010. Before these orders were made the respondents, and their legal advisors, would have full knowledge of the decisions and findings adverse to them and their legal implications. For these reasons, and the other reasons referred to above, the respondents in this case were in a much different and stronger position, than the position of a person in the situation of Ms. Pontin. It does not seem to me that there is any substantial comparison to be made between the capacity of persons in the position of the respondents to initiate and bring proceedings within the time limit fixed by s.5 of the Act of 2000 and that of an injured party such as Ms. Pontin who has 15 days or less to seek a lawyer, get advice and bring a claim from the time when she first heard of a potential breach of her rights. 182. Moreover, in this case, as already pointed out, the respondents have not made the case that there was some particular difficulty which prevented them from initiating proceedings earlier than when they did or indeed within the 14 day period. 183. For these reasons, I do not consider that the Pontin case is one which is comparable to the situation in the present case, and in particular that it is a basis in principle for concluding that the limitation period is in breach of the rule of effectiveness. Given the context and point in the asylum application process, as already explained, at which the 14 day period applies I do not consider that it is in breach of the rule in question. 184. It is fair to say that the learned trial judge did allow that there were differences between the statutory provision which applied in the Pontin case and the one which applies here, particularly with regard to the power to extend time. However, he concluded that in the light of the approach adopted by the Court of Justice in case, Case C-456/08 European Commission v. Ireland [2010] ECR I-859 it seemed unlikely that even a generous power to extend a time that was otherwise too short would suffice to satisfy the requirements of the principle of effectiveness. 185. I have already indicated why I consider that, on the facts of this case, the 14 day period provided for by s.5 of the Act of 2000 does not breach the rule of effectiveness, and I do not consider that the judgment of the Court of Justice in Commission v. Ireland affects that position. 186. It is the case that the Court of Justice found that Order 84A(4) of the Rules of the Superior Courts did not comply with the principle of effectiveness “in so far as it gives rise to uncertainty … as to how periods for bringing an action are to be determined …”. (Para. 1 second indent of disposing Declaration of the Court) 187. The uncertainty concerning a limitation period with which the Court of Justice was concerned in that case did not stem from the discretionary power to extend time for the bringing of proceedings, as such. That discretion allowed the national court to extend the period for bringing of proceedings if it found “good reason” for doing so. 188. At para. 80 of its judgment the Court of Justice expressly stated “…such a provision in itself, independently of its context, must be recognised as a valid implementation of Directive 89/665.” In other words in providing an effective remedy. Indeed, the Court of Justice added that in complex cases “the opportunity granted by the national legislature to national courts to extend, on grounds of fairness, the periods within which actions must be brought may be in the interests of the proper administration of justice.” 189. The context of the rule in Commission v. Ireland was all-important. The essential preoccupation of the Court of Justice was “… the wording of Order 84A(4) of the RSC, which provides that all relevant applications ‘shall be made at the earliest opportunity and in any event within three months’ gives rise to uncertainty. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made ‘at the earliest opportunity’ within the terms of that provision.” (emphasis added) This was the periodic uncertainty which was central to the Court’s decision. In short, at no point or stage was there any specified period within which to bring proceedings upon which a litigant could rely with certainty. 190. The Court of Justice found that there was no period within which a litigant could assume with certainty that he was entitled to bring proceedings since, from the outset, this was governed by the vague notion of “at the earliest opportunity”. At para. 81 of its judgment the Court noted “[e]ven if the candidate or tenderer concerned takes into account the possibility that periods may be extended, it will still not be able to predict with certainty which period will be accorded to it for the purpose of bringing proceedings, in view of the reference to the obligation to bring an action at the earliest opportunity.” 191. In contrast to Order 84A(4) of the Rules of the Superior Courts, in a case such as the present, the respondents, or persons in the position of the respondents, have a specified and certain 14 day period within which to bring proceedings. And it is only after this specified period that the discretion to extend the time further arises. Such a discretion after a defined period for bringing proceedings was no doubt inserted in the interest of the proper administration of justice, as envisaged by the Court of Justice in the citation above, but also to meet the requirements of constitutional justice as referred to in this Court’s judgment in In the Matter of Article 26 of the Constitution, And In The Matter of Sections 5 & 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 192. Undoubtedly the period of 14 days is short but it has to be placed, as this Court did in the Illegal Immigrants (Trafficking) Bill, 1999 case, and as I have sought to do so in this judgment, in the context of the asylum process as a whole. 193. It may well be the case, as the learned trial judge mentioned, that the vast majority of applicants obtain an extension of time for the purpose of bringing an application pursuant to s.5 of the Act of 2000. Whether this is due to real difficulty in bringing an application within the 14 day period or because litigants and their legal advisors take advantage of the fact that the courts, as the trial judge pointed out, exercise their discretion generously and liberally, is not possible to determine one way or the other on the evidence in this case. If, for example, it were established in a particular case that in a very significant proportion of cases it was practically impossible or excessively difficult for persons to bring proceedings within the 14 day period thus placing that significant proportion in a position of having to rely exclusively on the discretion of the court there could be grounds for arriving at the conclusion which the trial judge did in this case. I should perhaps add that any such conclusion would be a finding of fact based on the evidence as to how the section has worked in practice. Such a finding, if arrived at, would be for the purpose of deciding a question of E.U. law and not for the purpose of re-opening a constitutional question decided in an Article 26 reference - which of course cannot be done. 194. However, these are not the facts established in this case. There is no evidence on this point. Indeed, as I have already pointed out, the respondents did not make a case factually that they would have brought these proceedings within the 14 day period but for the practical impossibility of doing so in such a period, not to mention the facility afforded by the discretion to extend time. 195. For the foregoing reasons I do not consider it has been established as a fact or in principle, in the circumstances of this case, that the provisions of s.5 of the Act of 2000 offend against the rule of effectiveness as laid down by the Court of Justice in its jurisprudence. 196. Accordingly, I would hold that this ground of appeal is well founded. 197. This particular conclusion does not, however, affect the order of the High Court. It is clear that the decision of the trial judge to grant liberty to bring judicial review proceedings was based firstly, on the ground that the statutory provision breached the principle of equivalence and secondly, on the ground that it had breached the principle of effectiveness. Both, or either one, was sufficient as a basis for the making of his order. Accordingly, since I agree with the learned High Court judge that the statutory provision in question breaches the principle of equivalence there is no reason to interfere with the order which he made in this case. 198. Accordingly, I would dismiss the appeal against the Order of the High Court.
|