TD and Others v Minister for Justice

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Respondent/Defendant:Minister for Justice
Court/s:Supreme Court
Citation/s:[2014] IESC 29
Nature of Proceedings:Judicial Review
Judgment Date/s:10 Apr 2014
Judge:Denham CJ, Murray, Fennelly, O’Donnell and McKechnie JJ. Judgment delivered by Fennelly J. (Denham CJ, O’Donnell and McKechnie JJ. concurring); Murray J. dissenting in part.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Minor, Refugee, Refugee Law
Country of Origin:Nigeria
Geographic Focus:Ireland

The applicants were failed asylum seekers and sought to quash, by way of judicial review, a number of decisions whereby the asylum authorities, and ultimately the Minister for Justice, refused them recognition as refugees. They invoked provisions and principles of EU law for that purpose. The State argued that their application for judicial review was out of time, not being brought within the period of fourteen days laid down by s.5 (2) of the Illegal Immigrants (Trafficking) Act 2000 (“the Act of 2000”). In the High Court, Hogan J. held that the time-limit imposed by s. 5(2) was incompatible with the principles of equivalence and effectiveness under EU law.

However, he granted leave to appeal to the Minister on the basis that the matter was a point of law of exceptional public importance, on the following question:-

“Where an applicant for judicial review seeks relief against a refusal by the Minister for Justice, Equality and Law Reform to grant a declaration of refugee status on the grounds that the Refugee Act, 1996, as amended, is incompatible with European Union law is the application of the limitation period contained in s.5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000 and where there is otherwise no good or sufficient reason for extending the period within the meaning of that sub-section incompatible with either or both of the European Union legal principles of equivalence and effectiveness.”

The Supreme Court held, unanimously, that the provision did not breach the principle of effectiveness and, by a majority (Murray J. dissenting), that it did not breach the principle of equivalence.

Insofar as the principle of effectiveness was concerned, it pointed out that the applicants had the benefit of professional legal advice throughout their asylum applications and that they had never made the case that there was some particular difficulty which prevented them from initiating proceedings earlier than they did or indeed within the fourteen day period.

As regards the principle of equivalence, the Supreme Court held that the essential subject-matter of the acts to which the time-limit applied was the control by the State of entry into or remaining on its territory by persons from other countries. It applied without distinction both to claims based on EU law and to those made under national law, and did not infringe the principle of equivalence.

It declined to refer any question to the Court of Justice of the European Union (CJEU) on the matter, holding that the principles were well-settled and that no new issue of interpretation of EU law arose. Moreover, it pointed out that it was for the national court to form its own judgment as to whether the national rules infringed the principle because only that court had the capacity to know and understand the operation of the national rules within the context of the system as a whole.

The Supreme Court therefore upheld the provisions of s. 5(2) of the Act of 2000 with the EU law principles of equivalence and effectiveness.


Insofar as the Irish asylum system imposes time-limits for challenging decisions on asylum and immigration matters, such as those contained in s. 5(2) of the

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