The High Court has allowed an anonymised asylum applicant to amend her judicial review case to challenge the legislation governing papers-only appeals, including on EU and constitutional grounds. The court did not decide whether those challenges succeed or determine the original judicial review issues.
The applicant, identified as S.O., said she faced persecution in Nigeria after her husband died on 10 July 2009. She arrived in Ireland on 24 October 2010 and applied for asylum on 7 April 2011. The Refugee Applications Commissioner recommended refusing the application on 30 June 2011. The applicant received that decision on 19 July 2011.
The Commissioner had made a finding under section 13(6) of the Refugee Act 1996 that the applicant did not apply as soon as reasonably practicable. The judgment said that finding would deprive her of an oral hearing before the Refugee Appeals Tribunal. It therefore considered it appropriate for her to seek judicial review at this stage, rather than first appeal to the Tribunal.
At the hearing, the applicant’s barrister argued that a person whose application was late should not be treated like someone whose claim had no or minimal basis. He also submitted that the Tribunal could not revisit the Commissioner’s section 13(6) finding or direct an oral hearing. After the judge explored whether that complaint concerned the legislation itself, the applicant applied to amend her case to raise EU and constitutional challenges.
The respondents opposed the amendment. The judge, Mr Justice Richard Humphreys, assessed whether the proposed grounds were arguable, whether there was an explanation for adding them, and whether allowing them would cause irremediable prejudice. He found those requirements met. He stressed that this was a provisional assessment of arguability, not a decision on the challenges’ merits. He also noted that the Tribunal could reverse other findings made by the Commissioner, and that he could not anticipate the appeal’s result.
Under the order, the applicant may file amended grounds within seven days of the 21 December 2015 judgment. The respondents must file an opposition within 21 days after receiving them; for now, their response on constitutionality may simply deny that the Act is unconstitutional. The court will hear the non-constitutional issues, including the new EU law points, first. Constitutional arguments will be heard only if they remain necessary afterward. Costs were reserved. The judgment did not decide the asylum claim, the underlying judicial review, or the validity of the legislation.