The High Court has found that Ireland’s procedure for reviewing refusals to readmit a person to the asylum process did not provide the effective remedy required by EU law. The court said neither the initial ministerial decision nor the internal review was made by a court or tribunal, and judicial review could not make up for that gap.
The case concerned N.M., a national of the Democratic Republic of Congo. Her earlier asylum claim, based on alleged Rwandan parentage and an allegation that she was a spy, was rejected by the Refugee Appeals Tribunal in 2011. Her later application for subsidiary protection was also refused. Neither decision was challenged. A deportation order was made in September 2011; a separate application to revoke it remained outstanding at the time of this judgment.
In October 2012, N.M. sought the Minister’s consent to make a subsequent asylum application. She relied on new information about the alleged risk to failed asylum seekers returned to the DRC, as well as her deteriorating medical condition and the risk of detention and ill-treatment. The Minister refused the application initially and again on internal review in February 2013.
The central issue in this judicial review was whether the internal review process, together with the possibility of judicial review in the High Court, met Article 39 of the EU Procedures Directive. The Minister accepted that review by a more senior official in the same department was not an independent court or tribunal, but argued that judicial review supplied the required remedy.
Mr Justice Barr distinguished this process from the asylum appeal system considered in earlier EU case law. In that system, an appeal was available to the Refugee Appeals Tribunal, which had been found to be a court or tribunal; judicial review helped safeguard its independence. In N.M.’s case, by contrast, neither decision-maker in the readmission process was a court or tribunal.
The judge said the High Court’s judicial review role was supervisory: it could annul an unlawful decision and remit the matter, but could not substitute its own findings on the substance of the application. The court was not an appeal court, and an applicant could not simply appeal against the decision’s merits.
The court concluded that the statutory review process and the High Court’s supervisory role together did not constitute an effective remedy before a court or tribunal as Article 39 required. The parties had agreed that the internal review decision of 7 February 2013 could not stand. The judgment did not specify the final form of the order; the judge said he would hear the parties on that question.