Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgment the Court referred to the principle of effective judicial protection, which is a general principle of European Union law, is enshrined in Article 47 of the Charter. The Court also explained what factors should be taken into account in order to determine whether a body is ‘a court or tribunal’ for the purposes of Article 267 TFEU.
In each of the two cases in the main proceedings, an asylum application was filed in Ireland by a Nigerian national.
In the case of Ms H.I.D., the Irish authorities dismissed the asylum application. The processing of the appeal to the Refugee Appeals Tribunal against that dismissal has been deferred pending delivery of the judgment of the referring court in the cases in the main proceedings.
In the case of Mr B. A., the Irish authorities issued a negative recommendation in respect of his application, which was confirmed on appeal by the Refugee Appeals Tribunal.
They both appealed to the High Court. They argued that the possibility of lodging an appeal before the Refugee Appeals Tribunal may not comply with the obligation set out in Article 39 of Directive 2005/85 to guarantee ‘the right to an effective remedy before a court or tribunal’. In support of this contention, the applicants submit that the Refugee Appeals Tribunal is not ‘a court or tribunal’ within the meaning of Article 267 TFEU. The High Court dismissed both appeals before it and refused to grant the applicants’ claims.
Both applicants lodged an application to the High Court seeking leave to appeal against its judgment to the Supreme Court.
1. Whether Article 23(3) and (4) of Directive 2005/85 must be interpreted as precluding a Member State from examining by way of an accelerated or prioritised procedure certain categories of asylum applications defined on the basis of the criterion of nationality or of the country of origin of the applicant.
2. Whether Article 39 of Directive 2005/85 must be interpreted as precluding national legislation in asylum matters such as that at issue in the main proceedings, which establishes a system relating to the procedures for granting refugee status which has various features of an administrative or organisational nature. The referring court seek to ascertain, in particular, whether national legislation which provides for an appeal against the decisions of the determining authority before the Refugee Appeals Tribunal, the status of which as an independent court or tribunal is disputed by the applicants in the main proceedings, respects the requirement of an effective remedy as provided for under Article 39 of Directive 2005/85.
1. The court held that Article 23(3) and (4) of Directive 2005/85 must be interpreted as not precluding a Member State from examining by way of 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.
2. The Court held that Article 39(1)(a) of Directive 2005/85 states that the Member States must ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against a decision taken on their application for asylum. The principle of effective judicial protection, which is a general principle of European Union law, is enshrined in Article 47 of the Charter
The Court referred to recital 27 in the preamble to Directive 2005/85 which states that the decisions taken in relation to an application for asylum must be subject to an effective remedy before a court or tribunal within the meaning of Article 267 TFEU.
The Court referred to its settled case-law and stated that in order to determine whether a body making a reference is ‘a court or tribunal’ for the purposes of Article 267 TFEU, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent.
The Court stated stated that the requirement that the procedure be inter partes is not an absolute criterion.
The Court also stated that the concept of independence, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision. According to the Court there are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them. The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests in relation to the subject-matter of those proceedings.
The Court has also stated that such guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In that regard, in order to consider the condition regarding the independence of the body making the reference as met, the case-law requires, inter alia, that dismissals of members of that body should be determined by express legislative provisions (para 80 - 97).
Asylum Procedures Directive 2005/85/EC
The application of the EU Charter of Fundamental Rights to asylum procedural law