The Court of Appeal has allowed the Minister for Justice, Equality and Law Reform’s appeal in a case about the remedy available when an asylum seeker is refused re-admission to the asylum process.
In a judgment delivered on 14 July 2016, Mr Justice Gerard Hogan said judicial review could provide an effective remedy under Article 39 of the EU Procedures Directive. He said the High Court must be able to subject the decision maker’s reasons to a thorough review, applying contemporary judicial review standards.
The case concerned N. M. (DRC), a national of the Democratic Republic of Congo who arrived in Ireland in April 2008 and claimed asylum. She said she had Rwandan parentage and feared the DRC authorities because of an allegation of espionage. Her asylum claim and subsequent subsidiary protection application were refused, and a deportation order was made in September 2011.
In October 2012, she sought re-admission to the asylum process, arguing that reports indicated the DRC ill-treated citizens returned after unsuccessful asylum applications abroad. The Minister refused the request. A more senior departmental official reviewed that refusal, but a further adverse decision was communicated in February 2013.
The High Court held in December 2014 that the internal review procedure, combined with judicial review, did not provide the effective remedy required by EU law. It considered that judicial review could annul and remit a decision but could not replace it with the court’s own findings or consider newer country information.
The Court of Appeal disagreed with that conclusion. Mr Justice Hogan accepted that judicial review is not an appeal on the merits and has limits, including that a court does not substitute its own decision. But he said those limits did not make it ineffective. Under the standards developed in cases including Meadows, the High Court can examine whether a decision’s reasons are factually sustainable, proportionate and supported by its premises, and can quash for material factual error.
The judgment does not decide whether N. M. should be readmitted to the asylum process or whether her underlying protection claims succeed. It addresses the legal adequacy of the remedy available to challenge a refusal. The court’s conclusion was that judicial review can satisfy Article 39 where the national court can thoroughly review the reasons for the refusal. The Minister’s appeal was allowed.