The applicant was from the Democratic Republic of Congo. She arrived in Ireland and claimed asylum in 2008. Having been refused refugee status, she was issued with a deportation order. The applicant subsequently applied to the Minister for Justice for re-admission to the asylum process pursuant to s.17(7) of the Refugee Act 1996 (as amended) on the grounds that she was a refugee sur place. She was refused readmission but was told that she was entitled to a review of that decision. She applied for a review, which was refused by the Ministerial Decisions Unit of the Department of Justice. The applicant wrote to the Minister stating that her review process did not accord with the right to an effective remedy pursuant to the provisions of art.39 of Council Directive 2005/85/EC (the Procedures Directive). The applicant then challenged the review procedure by way of judicial review proceedings.
The High Court (Barr J.) found that judicial review did not provide for a remedy which was capable of reversing the first instance refusal and held that this was incompatible with the effective remedy requirements of art.39 of the Procedures Directive. The Minister appealed.
The Court of Appeal allowed the Minister’s appeal, holding that modern judicial review does satisfy the effective remedy requirements of art.39(1) of the Procedures Directive. The Court of Appeal stated that in order to amount to an effective remedy within the meaning of art.39, it is necessary that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review. It was clear that the decision of the Minister must satisfy the requirements of factual sustainability and the reasons for that decision could furthermore be fully scrutinised within the parameters of the judicial review procedure. The Court of Appeal referred to well-established case-law which established that the court in judicial review proceedings can quash a decision for material error of facts. It was accepted that while the judicial review court cannot review the merits of the decision, the Court of Appeal pointed out that it can nonetheless quash for unreasonableness or lack of proportionality or where the decision simply strikes at the substance of constitutional or EU rights. The court can further examine the conclusions reached and ensure that they follow from the decision-maker’s premises.
The Court of Appeal also said that art.39(1) of the Procedures Directive does not require an appeal simpliciter, and each Member State remains free to organise its own supervisory procedures. Article 39 was not, therefore, prescriptive regarding the choice of remedy and it was open in principle, therefore, to each Member State to choose as between some form of appeal on the one hand and judicial review on the other. The Court of Appeal said that art.39 imposes only one–albeit, critical–requirement, namely, that the remedy in question must remain an effective one. This means that the supervisory jurisdiction of the High Court must be ample enough to ensure that the reasons which led the competent authority to reject the application for asylum as unfounded may be the subject of a thorough review by the national court. The Court of Appeal stated that the High Court fell into error in concluding that the remedy of judicial review was in itself an ineffective remedy for the purposes of art.39. While the remedy of judicial review has inherent limitations such as no power to substitute findings of facts for those of the decision-maker and a power of annulment only, these do not otherwise deprive judicial review of the character of an effective remedy. What is critical is that the judicial review court can subject the reasons of the decision maker to thorough review. The Court of Appeal stated that this task can be performed by the High Court using contemporary judicial review standards.