The applicant applied to the Minister for Justice for permission to re-enter the asylum system under s. 17(7) of the Refugee Act 1996. Her application was refused and a review was available to her, which would be carried out by a more senior official in the Minister’s department. The review was sought and proved unsuccessful.
The applicant instituted proceedings claiming that the review available was not compatible with the right to an effective remedy under Article 39 of the Procedures Directive (2005/85/EC), emphasising that the reviewer was not independent of the first instance decision-maker, all of the deciding officers being officials of the Minister for Justice.
The Minister conceded that point, but contended that the remedy of judicial review before the High Court constituted an effective remedy.
The applicant disputed that, pointing to the limited jurisdiction of the court, which could not obtain up-to-date country or origin information, reverse the decision under challenge or substitute its own findings of fact on the substantive issues. It could only annul it and remit it to the earlier decision-maker. It could not look at information that was not before the earlier decision-maker.
The High Court upheld the applicant’s complaint.
It held that neither the first instance decision-maker nor the reviewer was a “court or tribunal” within the meaning of Article 39 of the Procedures Directive and as defined in the jurisprudence of the CJEU. Nor was the High Court exercising its supervisory role by way of judicial review. In its view, the combination of remedies, even taken as a whole, did not at any stage provide for a remedy to a court or tribunal which was capable of reversing the first instance refusal.
The High Court therefore noted that it was acknowledged by the parties that the review decision was unable to stand and it agreed to hear them on the order to be made by it.