CJEU judgment in case C-175/11 H.I.D., 31 January 2013

Friday, October 4, 2013

Request for a preliminary ruling - Common European Asylum System - Application by a national of a third country seeking refugee status - Directive 2005/85/EC - Article 23 - Possibility of prioritising the processing of asylum applications - National procedure applying in a prioritised procedure for the examination of applications by persons belonging to a certain category defined on the basis of nationality or country of origin - Right to an effective judicial remedy - Article 39 of Directive 2005/85 - Concept of "court or tribunal" within the meaning of that article

National proceedings
The applicants in national proceedings contested the compatibility of the application by Ireland of the prioritised asylum procedure to all Nigerians on the basis of their nationality with Article 23 of Directive 2005/85. Further, they contended that the possibility to lodge an appeal with the Irish Refugee Appeals Tribunal did not constitute an effective remedy in the sense of Article 39 of the same Directive. Such Tribunal could not in their view be considered "a court or tribunal" in the sense of Article 267 TFEU as it is not independent owing to the existence of functional links with the Minister of Justice.

Questions referred for a preliminary ruling

- Is a Member State precluded by the provisions of [Directive 2005/85] or by general principles of European Union law from adopting administrative measures which require that a class of asylum applications defined on the basis of the nationality or country of origin of the asylum applicant be examined and determined according to an accelerated or prioritised procedure?

- Is Article 39 of [Directive 2005/85] when read in conjunction with its recital 27 and Article 267 TFEU to be interpreted to the effect that the effective remedy thereby required is provided for in national law when the function of review or appeal in respect of the first instance determination of applications is assigned by law to an appeal to the Tribunal established under Act of Parliament with competence to give binding decisions in favour of the asylum applicant on all matters of law and fact relevant to the application notwithstanding the existence of administrative or organisational arrangements which involve some or all of the following:

-The retention by a government Minister of residual discretion to override a negative decision on an application;
-The existence of organisational or administrative links between the bodies responsible for first instance determination and the determination of appeals;
-The fact that the decision making members of the Tribunal are appointed by the Minister and serve on a part-time basis for a period of three years and are remunerated on a case by case basis;
-The retention by the Minister of powers to give directions of the kind specified in ss. 12, 16 (2B) and 16 (11) of the [Refugee Act]?

Consideration of the questions
The CJEU's answer to the first question is that the possibility for Member States to provide for the prioritised processing of an asylum application must be interpreted in the light of the discretion which Member States enjoy in relation to the organisation of the processing of such applications. As to the principle of non-discrimination based on nationality, the Court notes that in matters of asylum and under the system established by Directive 2005/85, the country of origin of the applicant and consequently his nationality play a decisive role. Furthermore, the Directive allows Member States to designate countries of origin as safe and to apply a prioritised procedure where an application is considered unfounded because the applicant is from a safe country of origin within the terms of the Direction. Hence, the nationality of the applicant for asylum is an element which may be taken into consideration to justify the prioritised processing of his application. As long as such procedure does not deprive applicants of the guarantees applicable to all forms of procedure according to Article 23 of the Directive, there will be no discrimination. The Court therefore rules that:

Article 23 (3) and (4) of Council Directive 2005/85/EC of 1 December 2005 (...) must be interpreted as not precluding a Member State from examining by way of a prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

With respect to the second question, the CJEU applies the test of Article 267 TFEU to determine whether the Irish Refugee Appeals Tribunal can be considered a court or tribunal in the sense of Article 39 of the Directive and whether it can constitute the effective remedy foreseen by that Article. The CJEU concludes that the Refugee Appeals Tribunal is established by law, is permanent and applies rules of law. Furthermore, when it decides in favour of the asylum seeker, this decision is binding upon the Minister of Justice, the authority which ultimately grants asylum. The rules for the appointment of its members cannot call into question its independence. Although the rules on dismissal are not precise, the Court establishes, on the basis of Recital 27 of the Directive's preamble, that the Irish system needs to be assessed as a whole in order to determine whether it is capable of guaranteeing an effective remedy. From this point of view, the Court observes that the decisions of the Refugee Appeals Tribunal can be appealed to the High Court and further appealed to the Supreme Court. These means of redress protect the Appeals Tribunal against external interference. Therefore, the criterion of independence is satisfied as well and the Irish system must be regarded as respecting the right to an effective remedy. The Court rules:

Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that as issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or a tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority's decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

For the full judgment, please visit the CJEU's website.

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Safe country of origin
Accelerated procedure
Country of origin
Effective remedy (right to)
Procedural guarantees