The Supreme Court dismissed the Minister’s appeal against a High Court order allowing a South African mother and her two minor children to seek judicial review of decisions refusing them refugee status and making deportation orders. The Court held that the 14-day limit for challenging the relevant decisions breached the EU law principle of equivalence. It rejected a separate finding that the limit breached the principle of effectiveness in this case.
The appeal concerned the High Court’s grant of leave to bring judicial review, not a final decision on whether the family should receive refugee status. The Supreme Court’s ruling left that leave in place; it did not decide the merits of the family’s underlying asylum claim.
The family applied for asylum in April 2009. The Refugee Applications Commissioner recommended refusal, and the Refugee Appeals Tribunal affirmed that recommendation in July 2009. The Minister refused refugee status in August 2009, later refused subsidiary protection, and made deportation orders in March 2010. The family began judicial review proceedings on 1 April 2010, challenging the deportation orders and earlier decisions. The proceedings were outside the 14-day limit in section 5 of the Illegal Immigrants (Trafficking) Act 2000. The High Court noted that no satisfactory explanation had been offered for the delay, but granted leave after finding the limit incompatible with EU law principles of equivalence and effectiveness.
On equivalence, the Supreme Court compared the 14-day limit with the three-month period generally applicable to judicial review. It held that challenges by asylum seekers seeking recognition of refugee status and proper procedures were not similar to judicial reviews by other non-nationals concerning state border control. The family’s proceedings concerned a claim to a legal status and procedural protections under EU law. Applying the shorter limit to those proceedings, the Court concluded, treated the EU law claim less favourably than similar domestic-law actions. The High Court had also found a breach, using different judicial review time limits as comparators.
On effectiveness, the Court disagreed with the High Court. It said the family had access to legal advice through the asylum process and had advance notice of adverse decisions; the deportation orders followed a series of decisions over several months. The family had not claimed that a specific difficulty prevented them from acting within the time limit, and the Court found no evidence that the 14-day period made access to a judicial remedy practically impossible or excessively difficult in their circumstances. The Court distinguished a European case involving a pregnant worker who had only 15 days from notice of dismissal, with no discretion to extend time.
The Supreme Court therefore held that the effectiveness ground of the appeal succeeded, but that the equivalence finding independently supported the High Court’s order. It dismissed the appeal.