Time limit to judicially review immigration decisions not in breach of EU law

Fennelly J (nem diss): Judicial review – the applicants are failed asylum seekers and are challenging various decisions to refuse them refugee status – Minister argued that they were out of time to bring judicial review proceedings - 14-day time limit to bring judicial review proceedings in asylum and immigration cases - whether the time limit imposed by s.5(2) of the Illegal Immigrants (Trafficking) Act 2000 is compatible with the principles of EU law, which limit the exercise of national procedural autonomy by the courts of the Member States – High Court held that s.5(2) was in breach of the principles of equivalence and effectiveness - Minister argued that the section applies to immigration decisions which are in no way concerned with EU law – statutory interpretation - whether s.5(2) gives equivalent protection to rights enjoyed by individuals depending on whether their claims for judicial review before the High Court are derived respectively from national law and/or the law of the European Union - distribution of competences between the Member States and the European Union - matters of asylum and refugee law are governed by EU law - not the case that every aspect of the sovereign power of a Member State to control the entry of persons on to its territory has passed to the EU - Member States retain their national identity and their sovereign power to control entry onto their territory, to permit or to refuse to permit nationals of third countries - Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article - national procedural autonomy - national procedural autonomy is subject to two limiting conditions: the principle of equivalence of treatment of national and EU law claims and the principle of effectiveness - s.5(1) of the 2000 Act - s.3 of the Immigration Act 1999 governs the deportation process - the fundamental task of the national court is to afford to those claiming rights under EU law protection equivalent to claims under national law and the Court of Justice specifically leaves it to the national court to assess equivalence – principles of effectiveness and equivalence – required by the case law of the Court of Justice to consider the matter in the light of the “purpose,” the “cause of action” and the “essential characteristics” of the claim at issue and to consider any equivalent claims or cause of action.