S29
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Cite as: [2014] IESC 29
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Judgment Title: T.D. -v- Minister for Justice Equality and Law ReformNeutral 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: O'Donnell J.
Status of Judgment: Approved
Judgments by / Link to Judgment / Result / Concurring
Fennelly J. / Link / Appeal allowed - set aside High Court Order / Denham C.J., O'Donnell Donal J., McKechnie J.
Outcome: Allow And Set Aside
THE SUPREME COURT
[Appeal No. 405 JR/2010]
Denham C.J.
Murray J.
Fennelly J.
O’Donnell J.
McKechnie J.
Between/
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 Mr. Justice Fennelly delivered the 10th day of April 2014.
1. The respondents, failed asylum seekers, seek to contest, by way of judicial review, a number of decisions whereby the State, and ultimately the Minister for Justice Equality and Law Reform (hereinafter “the Minister”) refused them recognition as refugees. As applicants in these proceedings, they invoke provisions and principles of the law of the European Union (“EU law”) for the purpose of invalidating those decisions. They are met by the contention of the State that their application for judicial review is out of time. It was not brought within the period of fourteen days laid down by s.5 (2) of the Illegal Immigrants (Trafficking) Act 2000 (“the Act of 2000”). There was no ground for extending that time.
2. In the High Court, Hogan J raised of his own motion the question whether the time limit imposed by s. 5(2) is compatible with the principles of EU law which limit the exercise of national procedural autonomy by the courts of the Member States, to wit, the principles of equivalence and effectiveness. The learned judge held the provisions of s. 5(2) to be in breach of both of those principles. Nonetheless, in granting leave to appeal to the appellant, he certified the following point of law as being a point of exceptional public importance for the purpose of that appeal pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000:
“Where an applicant for judicial review seeks relief against a refusal by the Minister for Justice, Equality and Law Reform to grant a declaration of refugee status on the grounds that the Refugee Act, 1996, as amended, is incompatible with European Union law is the application of the limitation period contained in s.5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000 and where there is otherwise no good or sufficient reason for extending the period within the meaning of that sub-section incompatible with either or both of the European Union legal principles of equivalence and effectiveness.”
3. Murray J has delivered a detailed and comprehensive judgment. I gratefully adopt his account of the history of the proceedings and of the arguments and submissions of the parties to the appeal. I would add only that, as I understand the primary submissions made on behalf of the Minister on the appeal, it is argued that s. 5 of the Act of 2000 applies to all immigration decisions and not merely to those which concern the implementation or application of EU law. In other words, the section applies to decisions which are in no way concerned with EU law. The written submissions of the Minister express the matter in the following two paragraphs:
”The primary submission of the Appellants…is that, not only was an incorrect or inappropriate comparator selected by the High Court, but the principle of equivalence is manifestly not breached in circumstances where the clear wording of Section 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 all challenges brought under national law.”
“Section 5 is utterly neutral in its terms and applies to all challenges regardless of the source of legal rights upon which the applicant for relief is relying.”
4. I fully agree with the judgment of Murray J that the section does not infringe the principle of effectiveness. I regret, however, that I do not share his view that s. 5(2) infringes the principle of equivalence. I entirely accept his very full account of the jurisprudence of the Court of Justice on these issues. My difference with the judgment of Murray J concerns essentially the interpretation of the scope of s. 5(1) of the Act of 2000 and the range of proceedings to which it applies. In this judgment, I explain why I do not believe that s. 5(2) infringes the principle of equivalence.
5. The question at issue is whether s. 5(2) gives equivalent protection to rights enjoyed by individuals depending on whether their claims for judicial review before the High Court are derived respectively from national law and/or the law of the European Union.
6. Section 5 of the Act of 2000 makes an application for judicial review the exclusive legal procedure for challenging the validity of a range of administrative decisions which concern asylum and immigration, in effect the control of the rights of persons to enter and remain on the territory of the State. In order to consider the scope of application of that section, it is appropriate, at the outset, to take stock of the present state of the distribution of competences between the Member States, on the one hand, and the European Union, on the other. Since the entry into force of the Lisbon Treaty, the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”) govern the relationship between the Union and the Member States in accordance with the principle of conferral.
7. Article 4 TEU provides:
“1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Article 5 TEU, echoing Article 4.1, states that the “limits of Union competences are governed by the principle of conferral.”
8. Articles 2 to 4 TFEU identify matters that are, respectively, within the exclusive competence of the Union or where competence is shared with the Member States. Article 4.2 lists among the subjects of “shared competence”:
(a) internal market;
(j) area of freedom, security and justice.
9. Article 26.2 TFEU provides:
“The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.”
Thus, the internal market comprises, inter alia, the free movement of persons within the European Union.
10. The “area of freedom, security and justice” encompasses asylum policy. Article 78 of the Treaty on the Functioning of the European Union provides that the Union is to “develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection…………..” That policy “must be in accordance with the Geneva Convention of 28 July 1951……………and other relevant treaties.” Article 18 of the Charter of Fundamental Rights of the European Union provides:
“The 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 on European Union and the Treaty on the Functioning of the European Union…”
11. The most notable EU legislative acts are Council Directive 2004/83/EC 29 April 2004 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 (“the Qualifications Directive”) and Council Directive 2005/85/EC 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”). Thus, claims for asylum are now, in effect, entirely governed by EU law. Murray J, at paragraphs 17 to 23 of his judgment explains that matters of asylum and refugee law are governed by EU law.
12. The areas of power or jurisdiction which are indisputably within the competence of the European Union are, firstly, all matters concerning the free movement of persons within the EU, i.e., between Member States, and, secondly, asylum and refugee status and international protection generally. It is almost certain that any proceeding whereby an individual claims rights either pursuant to the law of free movement or of asylum will be the subject of EU law.
13. On the other hand, it is not the case that every aspect of the sovereign power of a Member State to control the entry of persons on to its territory has passed to the EU. Article 4.2 TEU, quoted above, contains the important recognition by the Union that it shall “respect [the Member States’] essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.” Member States retain their national identity and their sovereign power, other than in respect of the admittedly very extensive subjects where the EU is now competent, to control entry onto their territory, to permit or to refuse to permit nationals of third countries, other than those claiming asylum, to enter the State. Insofar as concerns any attempt by a national of any of the countries which are not members of the European Union, except those seeking asylum or international protection, the State remains sovereign.
14. The nature of this sovereign power has been the subject of a number of important and well-known judicial pronouncements. In his judgment in A.O. & D.L. v. Minister for Justice [2003] 1 I.R.1, Keane C.J. stated that, at page 24, that the “inherent power of Ireland as a sovereign State to expel or deport non-nationals (formerly described in our statute law as "aliens") is beyond argument.” He approved the following dictum of Costello J in Pok Sun Shun v Ireland [1986] I.L.R.M. 593 at 599, which is also quoted by Murray J at paragraph 16 of his judgment:
"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."
15. The question of whether s. 5(2) of the Act of 2000 infringes the principle of equivalence arises in the context of the performance by the State of its obligation to provide a judicial remedy to persons having claims, here regarding asylum decisions, under EU law. Article 19 TEU, which provides for the Court of Justice of the European Union, provides:
“Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.”
That duty is reinforced, at a general level, by Article 47 of the Charter of Fundamental Rights of the European Union as follows:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.”
Furthermore, specific provision is made by the Procedures Directive for the obligation on the Member States and their courts in matters of asylum. It is a general principle of EU law that an applicant for asylum has a right to an effective remedy before a court or tribunal of the Member State in which he makes his application. (See Case C-69/10 Diouf v Minister du Travail [2011] ECR I-7151). There is a consequential duty laid on the courts of the Member States to afford judicial protection to individuals claiming rights derived from EU law in general and in respect of asylum and international protection, in particular.
16. That duty is performed in accordance with the principle of national procedural autonomy. That is the means by which claims under EU law benefit from but are, at the same time, subject to national procedural rules. It is a matter for national law to establish courts with jurisdiction, to provide remedies, i.e., causes of action, under national law and to lay down procedural rules including time limits for the pursuit of claims deriving from EU law. EU Law, other than for certain specific cases, prescribes no rules.
17. The exercise of national procedural autonomy is subject to two limiting conditions: the principle of equivalence of treatment of national and EU law claims and the principle of effectiveness. (see Case 45/76 Comet v Produktschap [1976] ECR 2043; Case 33/76 Rewe-Zentralfinanz v Landwirstchaftkammer Saarland [1976] ECR 1989 par 8; Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] 3595 par 12; C-208/90 Emmott [1991] ECR I-4269 par 16; C-9/90 Francovich and others [1991] ECR I-5357.). The Court of Justice has expounded the principles as follows in, amongst many other cases, Case C-255/00 Grundig Italiana Spa v Ministero delle Finanze [2002] ECR I-8003: