The Applicants, a mother and two children, were South African nationals who arrived in Ireland in April 2009 to claim asylum. The Refugee Applications Commissioner recommended that they not be declared refugees and this recommendation was affirmed by the Refugee Appeals Tribunal. On 29 August 2009 the Applicants were informed by the Minister that he was refusing their application for refugee status. They were notified of his intention to made deportation orders in respect of them and given the opportunity to apply for subsidiary protection and humanitarian leave to remain. An application for subsidiary protection was made but it was unsuccessful. Deportation orders were made on 9 March 2010. While the Applicants challenged the deportation orders, they were also constrained to challenge the earlier decisions of the Commissioner and the Tribunal on which these orders were based. The Applicants maintained, in common with many other applicants in other cases, that the procedures laid down by the Refugee Act 1996 were incompatible with Articles 23 and 39 of the Asylum Procedures Directive 2005/85/EC and that the State had failed properly to transpose the Directive into Irish law. These cases were brought following the leave decision of Cooke J. in H.I.D and B.A. v. Refugee Applications Commissioner and Others. Their application for judicial review of these decisions was outside the 14 day time limit for such applications prescribed by section 5 of the Illegal Immigrants (Trafficking) Act 2000, and they offered no explanation for their delay. The Applicants argued that they could be barred from asserting EU rights only if the time limits set down by section 5 of the Act of 2000 complied with the principles of equivalence and effectiveness as required by EU law, and that in this case the situation was otherwise.
The High Court (Hogan J.) found that the principle of equivalence required that the time limits in question be comparable to those applied in other broadly similar actions in the sphere of judicial review. The Court compared the 14 day time limit under section 5 with the general 6 month period for certiorari provided for under Order 84 of the Rules of the Superior Courts and the exceptional 8 week period provided for under planning and environmental protection statutes and concluded that s. 5 did not comply with the principle of equivalence.
With respect to the principle of effectiveness, the Court held that, notwithstanding the power of the Court to extend the time for the bringing of an application under s. 5, the provision might still leave an applicant in a position whereby he or she could not predict with any degree of certainty how that power might be extended in any given case, giving rise to a lack of predictability and consistency. For these reasons, the Court held that s. 5 did not comply with the principle of effectiveness.
In the circumstances, the Court expressed the view that whereas the Applicants would not otherwise be within time and would not merit an extension of time under s. 5, the situation was otherwise inasmuch and insofar as they challenged the operation of the Refugee Act for alleged non-compliance with the Asylum Procedures Directive. The Court held s. 5 failed the requirements of equivalence and effectiveness and that, for this reason, they could not be relied on by the State against the Applicants. For these reasons, the Court granted the Applicants leave to seek judicial review.
