AC v The International Protection Appeals Tribunal and Others
Jurisdiction | Ireland |
Judge | Ms. Justice Hyland |
Judgment Date | 12 February 2024 |
Neutral Citation | [2024] IEHC 77 |
Court | High Court |
Docket Number | RECORD NO. 2023/1057JR |
[2024] IEHC 77
RECORD NO. 2023/1057JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Hyland delivered on 12 February 2024
This is an application for leave to seek judicial review, as well as an application for an injunction restraining the Minister from transferring the applicant back to Spain under Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 (the “Dublin III Regulation”). The application was heard on notice, where the respondents strenuously objected to the injunction application. For the reasons explained in this judgment, I am granting leave on most – but not all – of the grounds advanced. I am granting an injunction restraining the Minister from going ahead with the transfer pending the determination of these proceedings, assuming that they remain as currently constituted, because the Minister has failed to make a decision on the applicant's Article 17 request, where the process governing such decisions is a key part of the applicant's complaint in these proceedings.
In brief, the applicant is a 23 year old Algerian national who made an application for international protection in Ireland on 4 April 2022. As disclosed to the International Protection Office (the “IPO”), he had irregularly crossed the border into Spain from Algeria on 20 July 2021. On 3 June 2022 the IPO made a request to Spain to “take back” under Article 13(1) of the Dublin III Regulation. Spain agreed to accept responsibility for the applicant on 15 June 2022. On 15 June 2022 the IPO informed the applicant that Spain had accepted responsibility and he was informed of his entitlement to submit further information on the proposed transfer, including humanitarian grounds.
On 5 July 2022 the applicant's solicitors made submissions to the Minister for Justice under Article 17 of the Dublin III Regulation, arguing the applicant was at risk of destitution and onward refoulement if he was returned to Spain and requesting that his application for international protection be determined in Ireland.
I pause the chronology of events here to provide some background to an Article 17 request. Article 17 of the Dublin III Regulation provides that each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in the Regulation. In other words, it is a discretion afforded to Member States to depart from the provisions of the Regulation if it wishes to take responsibility for an applicant for protection, even if it would otherwise be entitled to transfer them to another Member State. It is known as the “sovereignty clause”.
The Supreme Court has determined, following a consideration of Ireland's implementation of the Dublin III Regulation, that neither the IPO, who make the transfer decision, or the IPAT, who are the body designated to hear appeals from the IPO, can make decisions in respect of Article 17 applications. This means that – as in this case – a transfer decision can be made by the IPO and upheld by the IPAT, but an applicant can still assert that the process under the Dublin III Regulation is not concluded on the basis either that no decision has been made by the Minister in relation to the Article 17 request – as is the case here – or that there is an extant judicial review challenging the Minister's refusal to grant Article 17 relief. This bifurcation of the transfer decision and the Article 17 consideration has given rise to some considerable difficulties, as this case demonstrates.
In his Opinion in Case-359/22 AHY v Minister for Justice (ECLI:EU:C:2023:678), a case referred by Ferriter J. in 2022, Advocate General Pikamäe observed that Article 17(1):
“ cannot be understood as permitting the establishment of a separate administrative procedure from that which ends with the adoption of the transfer decision. On the contrary, I am convinced that the Dublin III Regulation created a legal regime in which no further administrative measure following the transfer decision can affect its validity”
Advocate General Pikamäe has observed that this dissociation of functions has the following consequence:
“… national provisions which dissociate the exercise of the discretion set out in the sovereignty clause from the transfer decision adopted under the Dublin III Regulation, and which allow a request for the exercise of that discretion to be submitted and examined independently of the adoption of a transfer decision and after that adoption, seem likely to hinder the proper functioning of the Dublin III Regulation in general terms, as the Commission acknowledges in its written observations”
A ruling is awaited from the Court of Justice of the European Union (the “CJEU”) on the reference.
Returning to the facts of this case, the applicant was informed that the Minister would make an Article 17 decision in due course. As of the hearing of the application on 30 January 2024, over 19 months later, no such decision had been made and no response at all had been provided to the applicant's Article 17 request.
Separately, submissions were made to the IPO that it had no authority to make a determination under the Dublin III Regulation as it was not a designated body for the purposes of Article 35 of Dublin III.
On 11 October 2022, the applicant was provided with a “Notice of decision to transfer him to another Member State”, identifying that the IPO had determined that Spain was responsible for examining his claim for international protection. He appealed that decision to the IPAT on 15 October 2022. On 18 August 2023 the IPAT refused his appeal and affirmed the IPO transfer decision.
The within proceedings were opened on 3 October 2023 for the purpose of stopping time and the leave hearing was adjourned on two occasions. On 17 January 2024, the Department of Justice wrote to the applicant instructing him to present himself to the Garda National Immigration Bureau on 25 January 2024 to make arrangements for his transfer. On 29 January 2024 he was issued with a notice to present on 13 February 2024. It was those notices that prompted the within application. I directed that the application be made on notice to the respondents. Submissions were made orally and in writing by counsel for the applicant and respondents.
Where an applicant seeks to judicially review a decision of the IPAT refusing international or subsidiary protection, he or she must demonstrate that they have advanced substantial grounds in order to be granted leave. However, where the decision of the IPAT is that a person is to be transferred to another Member State under the Dublin III provisions, any challenge need only meet the considerably lower threshold of arguability i.e., that the grounds of challenge are arguable. That is a low bar, being described in the Supreme Court decision in O'Doherty & Anor v The Minister for Health & Ors [2022] IESC 32 at paragraph 39:
“It is clear that the threshold of arguability in G. v. DPP is a relatively low bar, but, as Birmingham P. said in the Court of Appeal, it is not a non-existent threshold….The threshold is a familiar one in the law. It is, in essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that. While, inevitably, individual judges may differ on the application of the test in individual cases at the margins, the test itself is clear. This test – it must be stressed – is solely one of arguability: it is emphatically not a test framed by reference to whether a case enjoys a reasonable prospect of success, still less a likelihood of success. Any such language obscures the nature of the test and may on occasion lead to misunderstanding, appeal and consequent delay.”
I will grant leave in respect of the challenge to the decision of the Tribunal on the basis set out at paragraph E1(i) of the Statement of Grounds i.e., that because the IPO is not entitled to make a determination under the Dublin III Regulation absent proof that the requirements of Article 35 of the Regulation have been satisfied, the Tribunal could not make an appeal determination. Article 35 sets out that (i) Member States must notify the European Commission of the body responsible for the obligations under the Regulation, (ii) the name of the notified body must be published in the Official Journal of the European Union (iii) the notified body “shall receive the necessary training with respect to the application of this Regulation.”
The applicant makes a second argument to the effect that the failure to interview the applicant under Article 5 of the Dublin III Regulation until after Spain had accepted the takeback request renders the process procedurally improper. I consider this argument very weak. Article 5(3) of the Dublin III Regulation only requires the interview to take place before the decision to transfer is made, not before a Member State accepts the takeback request. The decision to transfer is made by Ireland in this case and the interview took place before any decision to transfer back. Further, in Joined Cases C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21 ECLI:EU:C:2023:934 (hereafter referred to as “ CZA”), the CJEU has indicated that in certain circumstances, it is acceptable if the interview takes place after the...
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AC v International Protection Appeals Tribunal and Others
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