The High Court granted a mother and her two children leave to seek judicial review of decisions in their asylum case, ruling that a 14-day statutory time limit could not be relied on against their claim based on the EU Procedures Directive.
Mr Justice Hogan’s judgment concerned the applicants’ challenge to deportation orders and earlier decisions refusing refugee status. The family, identified in the judgment only as TD, ND and AD, are South African nationals who arrived in Ireland in late April 2009. The mother said she had faced persecution because of her race, linked to a marriage she said had gone against her father’s wishes. Those were her claims; the judgment does not make findings on their truth.
The Refugee Appeals Commissioner rejected the application on credibility grounds in May 2009, and the Refugee Appeals Tribunal upheld that decision in July. The Minister notified the applicants in August that refugee status was refused and deportation orders were proposed. A later subsidiary protection application was refused in March 2010. Deportation orders were made on 9 March, and the family was notified on 16 March. They began these proceedings on 1 April 2010.
Because the challenge also concerned earlier decisions, it fell outside the 14-day limit in section 5 of the Illegal Immigrants (Trafficking) Act 2000. The judge said the applicants had not satisfactorily explained the delay and would not otherwise receive an extension of time.
The applicants argued that parts of Ireland’s asylum law did not comply with the EU Procedures Directive. The judge considered whether the 14-day limit could bar that EU-law claim. He concluded it failed the EU principles of equivalence and effectiveness: it was much shorter than the eight-week limit used for planning and development judicial reviews, and its short duration and uncertain extension process could make it excessively difficult in practice to bring a claim.
The court therefore held that the time limit could not be relied on against the applicants insofar as they challenged the operation of the 1996 Refugee Act on the basis of alleged non-compliance with the Directive. It granted leave to apply for judicial review for those specific reasons. The judgment did not decide whether the asylum legislation in fact complied with the Directive, whether the applicants qualified for protection, or the ultimate validity of the deportation orders.