AHY v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 31 March 2022
• Neutral Citation: [2022] IEHC 198
• Court: High Court
• Docket Number: RECORD NO. 2022/134/JR

Between:

AHY

Applicant

and

The Minister for Justice

Respondent

[2022] IEHC 198

RECORD NO. 2022/134/JR

HIGH COURT

JUDICIAL REVIEW

Judicial review – International protection – Injunction – Applicant seeking discretionary leave to have his international protection claim determined in the State – Whether the applicant had an arguable case

Facts: The applicant was a Somalian national who arrived in the State from Sweden. He claimed international protection. He was the subject of a “take back” request to the Swedish authorities under the provisions of Council Regulation (EC) No. 604/2013 (the Dublin III Regulation). Sweden agreed to that request. The applicant was furnished with a notice of decision to transfer to Sweden. He appealed that decision to the International Protection Appeals Tribunal (IPAT). IPAT refused his appeal and affirmed the decision to transfer. The applicant was then instructed by the Department of the respondent, the Minister for Justice, to present to the Garda National Immigration Bureau (GNIB) on 16th December 2021 to make arrangements for his transfer to Sweden not later than 6th April 2022. On 15th November 2021 the applicant applied to the Minister for discretionary leave to have his international protection claim determined in the State pursuant to article 17 of the Dublin III Regulation. He also requested, if article 17 relief were to be denied, that he be granted an undertaking that no further action would be taken to transfer him pending any judicial review application he may make. On 16th February 2022, the Minister gave her decision on the article 17 application, refusing that application. The applicant then issued judicial review proceedings in which he sought leave to challenge the article 17 decision and an injunction restraining his removal from the State pending the determination of the judicial review. The grounds upon which relief was sought, as set out in section E of the applicant’s further amended statement of grounds, were as follows: (a) “Carltona” grounds i.e. the decision was not lawfully made by the Minister but rather, impermissibly, by an officer on her behalf; (b) grounds relating to the contents of, and reasons given in, the article 17 decision with a particular focus on the Minister’s alleged failure to lawfully deal with the medical evidence of serious risk article of infringement of the applicant’s article 3 ECHR/article 4 Charter rights and his article 8 ECHR/article 7 Charter private life rights; (c) grounds relating to the alleged unlawfulness of the addendum; and (d) grounds relating to the contention that the judicial review of the article 17 decision entitled the applicant to the benefits of article 27 of the Dublin III Regulation, including automatic suspensive relief. The applicant sought a reference to the CJEU in respect of a number of questions as to the proper interaction between articles 17, 27 and 29 of the Dublin III Regulation.

Held by the High Court (Ferriter J) that the applicant surpassed the threshold of demonstrating that he had an arguable case. Ferriter J proposed making an order granting the applicant leave to apply by way of judicial review for the relief sought at D(1)(a) and (b); 2; 3, 4, 5, 6, 8, 9 and 10 of the further amended statement of grounds on all of the grounds set out in section E. Ferriter J granted the applicant an interlocutory injunction restraining the respondent, her servants or agents from taking any steps to remove the applicant from the State pending determination of the proceedings.

Ferriter J proposed making a reference to the CJEU under article 267 TFEU following further discussion with counsel as to the precise questions to be referred.

Application granted.

JUDGMENT of Mr Justice Cian Ferriter delivered this day 31st of March 2022

Introduction

1 The applicant is a Somalian national who arrived in the State from Sweden. He claimed international protection here. He was the subject of a “take back” request to the Swedish authorities under the provisions of Council Regulation (EC) No. 604/2013 (the “Dublin III Regulation”). Sweden agreed to that request. The applicant was, in consequence, furnished with a notice of decision to transfer to Sweden. He appealed that decision to the International Protection Appeals Tribunal (“IPAT”). IPAT refused his appeal and affirmed the decision to transfer. The applicant was then instructed by the respondent's Department to present to the Garda National Immigration Bureau (GNIB) on 16th December 2021 to make arrangements for his transfer to Sweden not later than 6th April 2022.

2 On 15th November 2021 the applicant applied to the respondent (“the Minister”) for discretionary leave to have his international protection claim determined in the State pursuant to article 17 of the Dublin III Regulation. He also requested, if article 17 relief were to be denied, that he be granted an undertaking that no further action would be taken to transfer him pending any judicial review application he may make.

3 The Minister did not substantively respond to that application and so the applicant issued judicial review proceedings against the Minister (High Court record number 2021/1058JR) in which he sought leave to apply for an order of mandamus to compel the Minister to make a determination in respect of his article 17 request, and an injunction restraining any steps in relation to his removal from the State pending the determination of those proceedings (“the first judicial review proceedings”).

4 The High Court directed that the applicant's leave application in the first judicial review proceedings be heard on notice to the Minister. The leave application was scheduled for hearing on 24th February 2022. Shortly before that hearing, on 16th February 2022, the Minister gave her decision on the article 17 application, refusing that application.

5 The applicant then issued these judicial review proceedings (“the second judicial review proceedings”) in which he seeks leave to challenge the article 17 decision and an injunction restraining his removal from the State pending the determination of this judicial review.

6 As the first judicial review proceedings were effectively overtaken by the event of the article 17 decision, I gave directions at the hearing before me on 24th February 2022 that the leave application in the second judicial review proceedings would proceed before me, on notice to the Minister, on 15th March 2022. Written submissions were exchanged on the issues in the second judicial review proceedings in advance of that hearing.

7 As will become clear, the applicant seeks a reference to the CJEU in respect of a number of questions as to the proper interaction between articles 17, 27 and 29 of the Dublin III Regulation. The potential need for such a reference had been flagged by the Court of Appeal in a very recent Dublin III case ( BK v Minister for Justice [2022] IECA 7 Collins J, 19 January 2022) (“BK”) which, as it happens, was a decision on an appeal from a judgment which I delivered in November 2021 — see [2021] IEHC 717.

8 Before addressing the legal issues arising, it is necessary to say a little more about the factual background.

Background

9 The applicant is a national of Somalia, born on 21st October 1987. He arrived in the State on 20th January 2020 and applied for international protection the next day on the basis that he had been subject to a bomb attack in Somalia which destroyed his shop and killed one of his employees. He claims to have scars on his hands and arm arising from this attack.

10 A EURODAC search resulted in two Category 1 search hits with Sweden for 5th November 2012 and 2nd October 2017, which disclosed that he had lodged an application for international protection in Sweden on those dates.

11 On 5th February 2020, he was interviewed under Article 5 of the Dublin III Regulation. He described that he left Somalia on 3rd October 2012 using a false passport. He flew to Nairobi, Kenya, and arrived in Stockholm, Sweden on 5th November 2012. He was fingerprinted on that date.

12 Sweden refused his asylum application on 5th November 2012. He remained there for eight years before travelling on a false Swedish passport to Ireland. He has no family members anywhere in the Dublin III countries, including Sweden.

13 On 17th February 2020, the IPO made a take back request to Sweden under article 18(1)(b) of the Dublin III Regulation. Sweden agreed to accept responsibility on 19th February 2020.

14 On 12th March 2020, the IPO informed the applicant that Sweden had accepted responsibility and that he may submit “ further information including humanitarian grounds” which he considered to be relevant within 10 days. No submissions were furnished.

15 The applicant was then issued with a “ Notice of decision to transfer application to another Member State” dated 23rd July 2020.

16 The applicant filed a Notice of Appeal with IPAT against this transfer decision on 5th August 2020. He submitted three Grounds of Appeal: (i) this would be an appropriate case for the exercise of article 17 discretion (ii) he was awaiting treatment in the State for pain due to injuries sustained from an explosion in Somalia, and he suffers from depression, which would render it unconscionable to separate him from his support network in the State (iii) he feared detention in Sweden if returned. Country of origin information (“COI”) in respect of this last ground was furnished.

17 He further advised IPAT that SPIRASI had informed him on 16th June 2021 that he would be recommended for a medico-legal report in respect of his health concerns.

18 His appeal hearing before IPAT took place on 8th July 2021. On 5th October 2021, IPAT affirmed the decision to transfer him under Regulation 6(9) of the Dublin System Regulations ( S.I. 62 of 2018) (“the 2018 Regulations”).

19 Subsequently, on 8th November 2021...