The High Court refused the applicants’ request for a certificate allowing an appeal to the Court of Appeal, finding that none of their three proposed questions raised a point of law of exceptional public importance.
The application followed an earlier High Court judgment on 20 March 2015 refusing certiorari against a decision of the Refugee Applications Commissioner. That earlier judgment allowed the matter to proceed to the Refugee Appeals Tribunal. The certificate application was made under section 5(3)(a) of the Illegal Immigrants Trafficking Act 2000, which requires both exceptional public importance and that an appeal be desirable in the public interest.
The applicants proposed questions concerning whether gender could establish membership of a particular social group for refugee protection; whether the Commissioner had applied the correct test to the Convention grounds; and whether adverse credibility findings could be relied on consistently with the right to an effective remedy.
In considering the first question, Mr Justice Robert Eagar said gender could constitute a social group for refugee law purposes. He nevertheless concluded that the proposed question did not meet the certificate test in this case. The Commissioner had treated the alleged conduct as criminality rather than persecution, and the Tribunal remained able to consider the appeal under its statutory powers. The judge said it would be wrong for the Tribunal to treat the earlier High Court judgment as binding if further arguments were made to it.
The court also rejected the proposed question concerning section 13(6)(a) of the Refugee Act 1996. The judgment noted that the applicants had arrived in Ireland on 1 November 2009 and applied for asylum on 3 February 2010. While an appropriate case might challenge the provision’s constitutionality on inequality grounds, the judge was not satisfied that this case raised a point of exceptional public importance.
The third question relied on the EU Procedures Directive’s right to an effective remedy. The judge noted that a constitutional challenge to sections 13(5) and 13(6) had not been pleaded in this case and found that the question did not satisfy the test.
The ruling addressed only whether to certify proposed questions for appeal. It did not decide the applicants’ refugee appeal before the Tribunal.