The Supreme Court has decided that asylum-seekers refused more time to seek leave to bring proceedings may appeal that refusal without first getting the leave of the High Court.
In her judgment yesterday, Ms Justice McGuinness said the right of access to the courts "is a well-established and important constitutional right. That right extends to non-nationals."
She was one of five judges who unanimously directed that two people who had been refused refugee status were entitled to appeal to the Supreme Court against the High Court's rejection of their applications to extend the time for them to challenge the status refusal. The applications will be heard on Monday.
The High Court had refused to extend the time for the bringing of such applications beyond the 14 days specified in the Illegal Immigrants (Trafficking) Act 2000 (IIA).
The cases, taken by a Nigerian man and a Somali man, raised the issue of whether an appeal against the refusal to extend the time to bring judicial review proceedings could be brought in the absence of the High Court granting leave to bring such appeals.
The State had argued no such appeal could be brought but the Supreme Court unanimously found there was nothing in the IIA restricting the right of appeal to the Supreme Court from the refusal to extend time.
The cases centred on construction of Section 5 of the IIA which contains provisions dealing with the right of access to the courts of persons affected by the operation of the Refugee Act 1996 and the Immigration Act 1999.
Allowing the appeals, the Chief Justice, Mr Justice Keane, said the Act's provisions could not be regarded as having clearly and unambiguously excluded the constitutional right of appeal to the Supreme Court.
He would allow the appeals and the Supreme Court would on Monday consider whether there were good and sufficient reasons in both cases for extending the time.
Mr Justice Geoghegan said it seemed obvious from a reading of Section 5 of the IIA that the policy underlying it was a speedy resolution of disputes under the aliens and refugee legislation.
The Act provided any challenges had to be taken through judicial review proceedings, there was to be a limited right of appeal from the High Court decisions granting or refusing leave for judicial review or granting or refusing judicial review itself; the grounds for obtaining leave were to be stricter than the ordinary grounds and, very importantly, the application for leave had to be brought within 14 days of the notification to the person of the decision, determination, recommendation or making of the order concerned.
Where an application for leave was not brought within 14 days, the applicant had to seek a time extension from the High Court which had to find there was good and sufficient reason for extending the time.
The IIA expressly imposed restrictions on the right of appeal to the Supreme Court in relation to applications for leave to take judicial review or applications for judicial review itself.
However, Mr Justice Geoghegan said, he found it difficult to see how there was "an ouster" of the right of appeal from a refusal to extend time to apply for leave to bring judicial review proceedings.
If the Oireachtas had intended that, "it should have said so", said Mr Justice Geoghegan.
Ms Justice Denham and Mr Justice Fennelly also allowed the appeals.