H. I. D. and B. A. v Refugee Applications Commissioner and Others.
Date: 2013-01-31
57. In order to answer the first question, it should be noted at the outset that, as set out in recitals 3 and 4 and in Article 1 of Directive 2005/85, the directive’s purpose is to establish common minimum standards for fair and efficient asylum procedures in the Member States.
63. At paragraph 29 of the judgment in Case C-69/10 Samba Diouf [2011] ECR I-7151, the Court has already stressed the fact that Member States enjoy, in a number of respects, a discretion with regard to the implementation of the provisions of Directive 2005/85 in the light of the particular features of national law.
80. Article 39(1)(a) of Directive 2005/85 states that the Member States must ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against a decision taken on their application for asylum. The principle of effective judicial protection, which is a general principle of European Union law, is enshrined in Article 47 of the Charter (see, to that effect, Case C-279/09 DEB [2010] ECR I-13849, paragraphs 29 and 31, and Samba Diouf , paragraph 49).
83. In this regard, it must be borne in mind that, according to settled case-law of the Court, in order to determine whether a body making a reference is ‘a court or tribunal’ for the purposes of Article 267 TFEU, which is a question governed by European Union law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (see, inter alia, Case C-53/03 Syfait and Others [2005] ECR I-4609, paragraph 29; Case C-517/09 RTL Belgium  [2010] ECR I-14093, paragraph 36; and Case C-196/09 Miles and Others  [2011] ECR I-5105, paragraph 37).
88. Secondly, it should be noted that the requirement that the procedure be inter partes is not an absolute criterion (See Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 31).
95. In accordance with the case-law of the Court, the concept of independence, which is inherent in the task of adjudication, implies above all that the bod y in question acts as a third party in relation to the authority which adopted the contested decision (Case C-516/99 Schmid [2002] ECR I-4573, paragraph 36, and RTL Belgium , paragraph 38).
96. There are two aspects to that concept. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (Case C-506/04 Wilson  [2006] ECR I-8613, paragraphs 50 and 51, and RTL Belgium , paragraph 39). The second aspect, which is internal, is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests in relation to the subject-matter of those proceedings ( Wilson , paragraph 52, and RTL Belgium , paragraph 40).
97. The Court has also stated that such guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and the grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In that regard, in order to consider the condition regarding the independence of the body making the reference as met, the case-law requires, inter alia, that dismissals of members of that body should be determined by express legislative provisions (see order in Case C-109/07 Pilato [2008] ECR I-3503, paragraph 24 and the case-law cited).
99. As for the rules governing the appointment of members of the Refugee Appeals Tribunal, these are not capable of calling into question the independence of that tribunal. The members of the Tribunal are appointed for a specific term from among persons with at least five years’ experience as a practising barrister or a practising solicitor, and the circumstances of their appointment by the Minister do not differ substantially from the practice in many other Member States.
103. In the present case, under section 5 of the Illegal Immigrants (Trafficking) Act 2000, applicants for asylum may also question the validity of recommendations of the Refugee Applications Commissioner and decisions of the Refugee Appeals Tribunal before the High Court, the decisions of which may be appealed to the Supreme Court. The existence of these means of obtaining redress appear, in themselves, to be capable of protecting the Refugee Appeals Tribunal against potential temptations to give in to external intervention or pressure liable to jeopardise the independence of its members.