Draft:T.D. v Minister for Justice Equality and Law Reform
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Last edited by AugusteBlanqui (talk | contribs) 5 months ago. (Update) |
T.D v Minister for Justice Equality and Law Reform [2014] IESC 29; [2014] 4 IR 277[1] was an Irish Supreme Court case in which the court considered whether s.5(2) of the Illegal Immigrants (Trafficking) Act 2000[2][3] was similar to the principles of equivalence and effectiveness under EU law.[4] Ultimately, the Supreme Court dismissed this challenge.
Background[edit]
The respondents (defendants) were South African nationals. The first named respondent, and her children (the second and third names respondents), applied for asylum in the State of Ireland in April, 2009. The children (the second and third named respondents), were included in her asylum application without a separate investigation to their claim.
From the beginning of her asylum application, the first named respondent had access to legal advice through the Refugee Legal Service. On the 6th of May, 2009, the first named respondent was notified by letter that "the Commissioner"[5] had decided not to declare her and her children as refugees. The respondents claimed that they had been victims of racial persecution. However, their claims were dismissed based on a "lack of credibility".[1]
Upon receiving the refusal, the respondents inserted a Notice for Appeal against the Commissioner's decision, This was unsuccessful as the Refugee Appeals Tribunal accept the Commissioner's decision. The Tribunal's conclusion was that the respondents' asylum application lacked both plausibility and credibility. On the 29th of August 2009, the Minister for Justice Equality and Law Reform informed the respondents that their refugee application had been refused, and that he advised a deportation order be issued in respect to them. Following this, the respondents proceeded to apply for subsidiary protection, to ensure that they would not get deported. However, this was refused by the Minister. The deportation orders were issued on the 9th of March 2010.
On the 1st of April 2010, the respondents commenced judicial review proceedings. The respondents challenged the deportation order and the earlier decisions made by the Minister to not grant them refugee status. The difficulty was that the application to the review fell outside the 14 day time limit provided by s.5 of the Illegal Immigrants (Trafficking) Act 2000,[2] as was pointed out by the High Court Judge, Hogan J.
In regards to the 14th day time limit, the High Court judge noted that although the respondents had sought out an extension of time, they had failed to provide a valid explanation for the delayed review of application. By observing the delay, the High Court Judge went on to examine "whether the time limit provided in s.5 of the Act 2000 was compatible with the principles of effectiveness and equivalence of European Union law". If it were compatible, the respondents could have invoked their rights under EU law before the national courts because EU law takes precedence over national law.[1]
The High Court judge found that the time limit was strict and thus incompatible with both Union law principles of equivalence and effectiveness. He allowed the respondents' judicial review application to be admissible despite the considerable time delay.
The High Court judge gave leave for the Minister of Justice and Law Reform to appeal the decision of the High Court, as he considered the issue to be of "exceptional public importance".[6] This case is an appeal by the Minister, against the decision of the High Court by Hogan J, to grant the respondents leave to ask for a judicial review of a decision made by the Minister.[1][7]
Holding of the Supreme Court[edit]
It was unanimously held by the Supreme Court that s.5(2) of the Illegal Immigrants (Trafficking) Act 2000 did not breach the principle of effectiveness, nor the principle of equivalence (by majority with Murray J dissenting) under EU law.
The Relationship between National Procedural Rules and E.U Law[edit]
E.U. law is an integral part of member states' domestic law. Notably, rights arising from E.U. law may be invoked before national courts. However, there is a certain "procedural autonomy" enjoyed by domestic courts.[8] This procedural autonomy is qualified by the two principles considered in this case: the principles of equivalence and effectiveness.
The Principle of Equivalence[edit]
This Principle demands that national procedural law be applied without distinction. National procedural law must not treat the protection of rights under E.U. law less favorably than rights under national law in similar proceedings.[9] National procedural law must operate in the same way for rights derived from national law and their E.U. law counterparts.[1]
The Principle of Effectiveness[edit]
The Principle of effectiveness demands that even where national procedural laws are in accordance with the principle of equivalence, they must not make it excessively difficult or impossible to assert rights under E.U. law.[10]
Supreme Court's Deliberations[edit]
The court was comprised of; Denham C.J., Murray J., Fennelly J., O'Donnell J., and McKechnie J.
Regarding the principle of effectiveness, it was pointed out by the court that the respondents' had the benefit of professional legal advice throughout the entirety of their various application processes. The respondents had failed to notify that there was some particular difficulty preventing them from initiating judicial review procedures earlier than they did or within the fourteen day period.
In the case, the principle of equivalence applied to the control that a State has regarding aliens (immigrants, refugees) entering or remaining in its territory.
"[The] State... must have very wide powers in the interest of the common good to control aliens, their entry into the State, their departure and activities within the State."[11] It was found that this statement "reflects an inherent element of State sovereignty over national territory long recognized in both domestic and international law."[12] This means that, regarding the principle of equivalence, the Supreme Court held that the essential subject-matter was the State's control of entry of aliens entering a new territory. There is a time limit that must be considered. This applies without distinction both to claims based on EU law and to those made under national law. Hence the principle of equivalence was not breached.[13]
There were no issues on the interpretation of E.U. law found necessary to address, and thus the case was not referred to the Court of Justice of the European Union (CJEU). The Supreme Court also found that it was to the national court to decide whether its national rules infringed on the principles of equivalence. It was decided that only the national court has capacity to fully understand the operation of its rules within the context of the state system.[14]
Decision[edit]
The judgement was brought by Murray J.
The Supreme Court found that s.5(2) of the Illegal Immigrants (Trafficking) Act 2000[2][3] upheld and was compatible with the principles of equivalence and effectiveness under E.U. law. Unfortunately, the respondents' claim for judicial review has been quashed.[13]
References[edit]
- ^ a b c d e T.D v Minister for Justice Equality and Law Reform [2014] IESC 29; [2014] 4 IR 277.
- ^ a b c Illegal Immigrants (Trafficking) Act 2000.
- ^ a b Book (eISB), electronic Irish Statute. "electronic Irish Statute Book (eISB)". www.irishstatutebook.ie. Retrieved 2019-10-27.
- ^ Biehler, Hilary (2018). "Practice & Procedure Time Limits in Judicial Review Proceedings". Irish Law Times. 36(1): 7–14 – via Westlaw.
- ^ Commissioner, Office of the Refugee Applications. "home - orac". Office of the Refugee Applications Commissioner. Retrieved 2019-10-27.
- ^ "Case Studies - The European Migration Network". emn.ie. Retrieved 2019-10-28.
- ^ "T.D. -v- Minister for Justice Equality and Law Reform [2014] IESC 29 (10 April 2014)". www.bailii.org. Retrieved 2019-10-28.
- ^ Case C- 33/76 [1976] E.C.R. 01989.
- ^ Case C- 63/08 Pontin [2009] ECR I- 10467.
- ^ Case 268/06 Impact [2008] E.C.R. I- 02483, para. 46
- ^ Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at p.599 Costello J.
- ^ Article 25 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360, p.382.
- ^ a b "TD and Others v Minister for Justice | The European Migration Network". Retrieved 2020-04-05.
- ^ "Case Studies - The European Migration Network". emn.ie. Retrieved 2019-10-28.