The High Court refused two asylum applicants’ application for a certificate allowing an appeal to the Supreme Court, finding no outstanding point of law of exceptional public importance. It made no order as to costs, directing that each side bear its own.
The proceedings concerned H. I. D., a minor suing through her mother and next friend, E. D., and B. A. Their original judicial review challenges to decisions concerning their asylum applications had been rejected in February 2011. The matter before Mr Justice Cooke in March 2013 was the applicants’ request for a certificate under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, following a preliminary ruling from the Court of Justice of the European Union (CJEU).
The CJEU had ruled that EU law did not preclude the Irish system, which allows an asylum applicant to appeal to the Refugee Appeals Tribunal (RAT) or to challenge the determining authority’s decision in the High Court. The applicants argued that the ruling meant judicial review and any further appeal formed part of the effective remedy, so the RAT’s decision could not count as the “final decision” until judicial review had concluded.
Justice Cooke rejected that reading. He said the CJEU had considered the Irish judicial review system as a safeguard for the RAT’s independence against possible external pressure, not as a further stage in the asylum determination process. The RAT’s decision remained the final decision under the Directive. If judicial review succeeded, the decision would be set aside and the Tribunal would have to make a new decision; the High Court would not substitute its own asylum determination.
The court also rejected submissions about minimum procedural standards and delay as grounds for a certificate. The standards argument depended on the applicants’ rejected interpretation of the CJEU ruling, while delay had not been shown to harm these applicants. The court concluded that the preliminary ruling resolved the points originally raised and refused leave to appeal to the Supreme Court.
On costs, the respondents sought their costs as the successful parties; the applicants sought their own costs from the State, relying on the public importance of the issues. The court said the challenges had been brought primarily to contest decisions in the applicants’ individual cases, rather than as public interest litigation. It nevertheless noted that the issues had wider significance and that resolving them could help settle several hundred pending cases. It ordered no costs, with each side bearing its own.