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BW v Minister for Justice, Equality and Law Reform

Applicant/Plaintiff: B.W.
Respondent/Defendant: Minister for Justice, Equality and Law Reform
Citation/s: [2017] IECA 296
Nature of Proceedings: Appeal
Court/s: Court of appeals
Judgment Date/s: 15 November 2017
Judge: Peart M.
Category:Refugee
Keywords:Asylum (Application for); Protection (Application for International); Refugee Law; Effective remedy; Fair procedures; Papers-only appeal
Country of Origin: Nigeria
URL: http://courts.ie/Judgments.nsf/0/CAB5D59248611379802581DB004D2899
Geographical Focus:Other

Facts:

The applicant came to Ireland from Nigeria in 2007. She applied for refugee status in 2011. Her application was unsuccessful. She appealed to the first respondent. The appeal was a papers only appeal. The appeal was unsuccessful. The Refugee Appeals Tribunal made adverse credibility findings based on matters that had not been put to the applicant and concluded that cumulatively the applicant had not proved that she was a refugee. The applicant challenged the decision by way of judicial review. The High Court (Humphreys J.) held that one finding in the decision was invalid but that this did not render the entire decision invalid. The applicant applied for leave to appeal to the Court of Appeal. Humphreys J. certified the following for appeal as a question of exceptional importance:

“Whether, in the case of a decision that is supported by a number of reasons, one or more of which are unsustainable, the overall conclusion can be upheld if the court considers, as a matter of reason and common sense, and on reading the decision in the round, that the invalid reasons are not major and do not go to the core of the decision, even if:

(a) despite not being major and not going to the core claim, they could be said to impact upon, in the sense of being relevant or potentially relevant to, the core claim;

(b) the decision is cumulative; or

(c) there is no express assignment of weight by the decision-maker to individual factors.”

Reasoning: 

The Court of Appeal found in favour of the applicant, holding that in a papers only appeal, the applicant remained entitled to an effective appeal remedy in accordance with the purpose and objective of Directive 2005/85/EC. She was also entitled to be afforded fair procedures under Article 40.3 of the Constitution. Her rights in these respects were not diluted or reduced by the fact that she could not require an oral hearing. The court stated that in a papers only appeal, the right to an effective appeal remedy was of particular importance where adverse credibility findings had been made against an applicant which had led to her application for refugee status being refused. Even where an applicant had an opportunity of addressing matters which led to an adverse credibility finding, the first respondent must still take particular care to ensure that fair procedures had been applied to the consideration of the appeal.

While each case needed to be considered on its own facts, the court stated that as a general principle, where an issue of concern emerged for the first time on a papers only appeal in relation to a matter which the appellant had not already had a fair opportunity to address and that concern was in relation to something material to the basis on which asylum was being sought, and therefore to the decision whether or not she be granted a declaration of refugee status, the applicant was as a matter of fair procedures entitled to an opportunity to address it before any adverse finding of credibility was made against her. Whether that opportunity required some form of oral hearing in relation to the concern or could be dealt with fairly and adequately in writing would depend on the particular facts. It was held that where an applicant was not afforded some opportunity to address some matter of significance that arose for the first time on a papers only appeal before that matter was relied upon for an adverse credibility finding, the finding in question might have to be set aside, particularly where that finding was objectively material to the basis for a conclusion that the applicant lacked credibility, and the decision on appeal was to uphold the recommendation of the Refugee Applications Commissioner to refuse a declaration.

Where there was a single fact, which was incorrect, within a decision as to credibility reached on a cumulative basis, or where the decision maker had failed to take into account some material fact, or where no opportunity was provided to the applicant to comment upon some matter of material concern to the decision maker upon which in part the adverse credibility finding was based, that might not of itself be sufficient to justify setting aside the overall decision as to credibility. Every case must be considered on its own facts when assessing the materiality of any particular error. The greater the number of reasons that were found to be flawed because the applicant had not been provided with an opportunity to address or otherwise comment upon the matters of concern upon which they were based, the more likely it was that the foundations of the overall decision reached on a cumulative basis were undermined to the extent that it must be set aside.  

Decision: Appeal allowed.

Principles:

Where an issue of concern emerged for the first time on a papers only appeal in relation to a matter which the appellant had not already had a fair opportunity to address and that concern was in relation to something material to the basis on which asylum was being sought, and therefore to the decision whether or not she be granted a declaration of refugee status, the appellant was as a matter of fair procedures entitled to an opportunity to address it before any adverse finding of credibility was made against her.


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