Fri, 06 Jun 2014
On 22 May 2014 the Supreme Court granted permission in the case of TN and MA (Afghanistan) on the important question: whether judicial review is an effective remedy for the purposes of the EU law of asylum.
The key ingredients of an effective remedy against a negative decision on asylum are (1) an independent decision by a court or tribunal that is (2) binding on the Secretary of State: see Case C-175/11 HID, 31 Jan 2013, §80-87.
There must be a remedy against any decision which entails the rejection of asylum as a fact whether for substantive or procedural reasons: see Case C-69/10 Samba Diouf, 28 Jul 2011, §42.
To be effective there must be the possibility of review of the facts and the law: Samba Diouf §57. The national court must be able to review the merits of the reasons leading to a rejection of the asylum claim as unfounded or made in bad faith: Samba Diouf §61.
What immigration practitioners regard as a remedy by way of appeal in the Tribunal is in fact a remedy in the form of an independent decision on the merits of both the facts and the law. It is a re-taking of the asylum decision by an independent body. For this reason it self-evidently meets the UK’s obligation under the Procedures Directive for the guarantee to disappointed asylum applicants of an effective remedy against an asylum refusal.
Judicial review suffers by comparison because it does not offer an independent decision on the merits or the facts and nor can the Court stipulate that the Secretary of State grant refugee status.
The Court of Appeal’s decision in TN is important because in holding that traditional JR is all that is required to meet the requirements for effective remedy under EU law, the Court is saying that our domestic system of asylum appeals to the Tribunal is more than European law requires.
This controversial view stems from the Court’s ruling that the answer to what is an effective remedy under the Procedures Directive in EU law, which is a matter for the Luxembourg court, is to be found in the European Human Rights case law of the Strasbourg Court: see Vilvarajah v UK (1992) App no 13163/87 (1992) 14 EHRR 248.
The method of asking fundamental questions of European Union law and answering them with decisions on Strasbourg law: see for example in the Home Office v Tariq  UKSC 35 is a worrying trend because Strasbourg sets the absolute floor for the minimum protections of human rights, whereas EU law has created a new area of freedom, security and justice for refugees.