Both Applicants were Nigerian asylum seekers. Their cases were heard together because they raised common issues. In January 2009 they obtained leave to challenge decisions of the Refugee Applications Commissioner (and in the Ajibola case, of the Refugee Appeals Tribunal) by way of judicial review on the grounds that their claim for a declaration of refugee status under s. 17(1) of the Refugee Act, 1996, had not been lawfully determined by means of a procedure which complies with the minimum standards required to be met by Council Directive 2005/85/EC (‘Procedures Directive’) in that:
(a) the processing of the applications had been unlawfully prioritised or accelerated as a result of a Direction given by the Minister in December 2003 which is incompatible with the provisions of the Procedures Directive and in particular Article 23 thereof; and
(b) that the procedures established under the Refugee Act 1996 deprived the applicants of an effective remedy against the first instance determination of their applications before a court or tribunal in compliance with the requirements of Chapter V of the Procedures Directive.
In its judgment on the substantive applications for judicial review, the High Court (Cooke J.) found that the instances in which an application for asylum may be prioritised or accelerated in Article 23 of the Procedures Directive were not exhaustive and that Member States remain entitled to organise the asylum process suit their national needs. The Court held that Article 23 neither required Member States to accord priority to cases such as those listed nor did it expressly or by implication preclude priority being granted to other cases. The Court further held that the Respondent’s Direction that Nigerian applications be prioritised did not constitute unlawful discrimination, because it was objectively justified on the grounds that over a substantial number of years, Nigerians constituted the single largest category of applicants by country of origin and the mast majority of applications from Nigerians were decided to be unfounded. The Court also noted that the Applicants had not shown that they had suffered any procedural disadvantage as a result of the prioritisation of their applications.
With respect to the Applicants’ argument that the asylum system failed to provide them with an effective remedy before a court or tribunal against a negative determination of their applications, the Court accepted the Applicants’ submission that for the purposes of the Procedures Directive, the Commissioner is designated the Determining Authority making the first instance decision on an asylum application and that it was in respect of the Commissioner’s decision that an Article 39 remedy had to be provided. The Court did not accept however that the right of appeal to the Tribunal and the availability of judicial review failed to provide for an effective remedy as required by Article 39. The Court noted that the report of the Commissioner was susceptible to judicial review in those cases where it was suitable or convenient to resolve issues of law or competence prior to any appeal, and observed that the remedy before the Tribunal took the form of a full appeal on both matters of fact and law and entails, in most cases, an oral hearing de novo. The Court further held that the Tribunal was a ‘court or tribunal’ for the purposes of Article 39 and that it was sufficiently independent and guarded against Ministerial intervention.
For these reasons, the applications for judicial review were refused.
