Supreme Court dismisses appeal against the decision of the High Court (Hogan J.) to grant South African nationals leave to apply for judicial review challenging deportation orders made against them, and other decisions refusing them international protection, on the grounds that the 14-day time limit for applicants in asylum and immigration decisions to initiate proceedings is in breach of the EU law principle of equivalence.
Murray J (nem diss): judicial review – appeal from High Court (Hogan J.) decision granting leave to apply for judicial review to South African nationals who were refused asylum – time limits - 14-day time limit on the making of an application for leave to issue judicial review proceedings in immigration cases – whether this time limit is compatible with European Union legal principles of equivalence and effectiveness - mother claimed to have suffered persecution in South Africa by reasons of her race – claim was refused due to a perceived lack of credibility – refused subsidiary protection – Minister issued deportation orders – initiated proceedings challenging the deportation orders but also the earlier decisions made by the Minister and by the Tribunal - no satisfactory explanation offered by them for the delay - trial judge found that the applicable time limits were incompatible with the principles of equivalence and effectiveness under European Union law - granted respondents leave to apply for judicial review – leave to appeal the High Court’s decision was granted on the grounds that it was a point of law of exceptional public importance and it was in the public interest that appeal be taken to the Supreme Court - rights of those seeking asylum within the State and the application of national procedural rules to proceedings in which a claimant seeks to assert such rights – impact of European law - rights of the respondents to seek asylum and refugee status in the State now anchored in the law of the EU rather than national law - primacy of the law of the EU - relationship between national procedural rules and EU law - procedural autonomy of domestic courts - principle of equivalence requires that national procedural rules must not treat the safeguarding of rights under EU law less favourably than the safeguarding of rights under national law - principle of effectiveness means that even where national procedural rules are compatible with the principle of equivalence, they must nonetheless not be such as to render it practically impossible to assert rights derived from EU law before the national courts - Judgment of the High Court – whether the High Court selected an incorrect comparator - principle of equivalence - manner in which the principle of equivalence should be applied by national courts – Minister argued that the time limit does not offend against the principle of equivalence because that procedural rule is of general application since the rule applies irrespective of whether it is sought to set aside those decisions on the grounds of a breach of national law or European law - appellants cannot justify unfavourable treatment of proceedings seeking to assert a right under European law solely on the basis that the different grounds for enforcing the same EU right are treated in the same way – regard must be had to similar causes of action at national level - what kind of actions should be treated as “similar actions” - for the national court to determine what domestic actions should legitimately be treated as similar actions - national court must look at the full range of actions or remedies which are similar - purpose and essential characteristics of the various actions must be considered - the national court is obliged to consider all national remedies which may be considered as similar actions and not just selected similar actions before determining which particular ones may properly be treated as appropriate comparators to the case in question - judicial policy - principle of effectiveness.