Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The referring court asks whether the principle of equivalence must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that the applicant whose asylum application has been rejected may make an application for subsidiary protection. Interpreting EU law and National law, the Court held that a national procedural rule, such as that at issue in the main proceedings, is capable of compromising the ability of applicants for subsidiary protection actually to avail themselves of the rights conferred on them by Directive 2004/83. The answer to the questions referred is that the principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, that an applicant whose asylum application has been rejected may make an application for subsidiary protection.
On 13 April 2010, Ms Danqua, a Ghanaian national, made an application for refugee status, in Ireland; the reason for the application being Ms Danqua’s fear of being subjected to trokosi practices, a form of ritual servitude practised in Ghana and predominantly affecting women. In a report of 16 June 2010, the Refugee Applications Commissioner (Ireland) issued a negative recommendation in respect of that application for lack of credibility. On 9 February 2011, the Minister notified Ms Danqua of a decision rejecting her application for asylum and informed her of his proposal to make a deportation order against her (proposal to deport). Following that decision, the Refugee Legal Service (Ireland) informed Ms Danqua that because of the rejection of her application for asylum, she would not be assisted in preparing her application for subsidiary protection. The Refugee Legal Service did however submit, in Ms Danqua’s name, an application for humanitarian leave to remain. On 8 October 2013, Ms Danqua lodged an application for subsidiary protection. By letter of 5 November 2013, the Minister informed Ms Danqua that her application for subsidiary protection status could not be accepted, since that application had not been lodged within the period of 15 working days referred to in the Minister’s notification of 9 February 2011 rejecting her application for asylum. Ms Danqua challenged that decision before the High Court (Ireland). By judgment of 16 October 2014, the High Court dismissed Ms Danqua’s action. On 13 November 2014, Ms Danqua brought an appeal against that judgment before the Court of Appeal. The Court of Appeal, whilst raising the question of the relevance of the principle of equivalence in the present case, considers that an application for asylum may constitute an appropriate comparator for the purposes of ensuring observance of the principle of equivalence. The Court of Appeal decided to stay the proceedings and to refer the question to the Court of Justice for a preliminary ruling.
The referring court asks whether the principle of equivalence must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that the applicant whose asylum application has been rejected may make an application for subsidiary protection.
“The principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority, that an applicant whose asylum application has been rejected may make an application for subsidiary protection"
Justiciable rights stemming from delays in first instance determination decisions, by Amanda Taylor, available at: http://www.asylumlawdatabase.eu/en/journal/justiciable-rights-stemming-delays-first-instance-determination-decisions
Qualification Directive 2004/83/EC
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment