Bibola Katshibombo v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 18 November 2021
• Neutral Citation: [2021] IEHC 717
• Court: High Court
• Docket Number: Record No. 2021/824JR

Between:

Bibola Katshibombo

Applicant

and

The Minister for Justice

Respondent

[2021] IEHC 717

Record No. 2021/824JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – International protection – Interlocutory injunction – Applicant seeking an order of certiorari quashing the decision of the respondent refusing the applicant’s request for the exercise of her discretion to examine the applicant’s application for international protection in Ireland and affirming that she will be transferred to Belgium – Whether the applicant was entitled to an interlocutory injunction pending the outcome of her judicial review challenge

Facts: The applicant, Ms Katshibombo, applied to the High Court seeking an order of certiorari quashing the decision of the respondent, the Minister for Justice, made on 23rd September, 2021, pursuant to Article 17(1) of Regulation (EU) No. 604/2013 (the Dublin III Regulation), refusing the applicant’s request for the exercise of her discretion to examine the applicant’s application for international protection in Ireland and affirming that she will be transferred to Belgium (the Article 17 Decision). Prior to the Article 17 Decision, Belgium was the country which had been determined, on the application of the criteria in Chapter III of the Dublin III Regulation, to be the appropriate country to examine the applicant’s international protection application. In her amended statement of grounds, the applicant articulated her case in judicial review against the Article 17 Decision as follows: “Unfairness/irrationality and abuse of discretion: In making the Impugned Decision failing to make any Art.17 determination, or to grant an undertaking pending such determination, the Respondent has fettered her discretion and/or given no adequate regard to the Applicant’s rights under Articles 4 and/or 7 of the Charter and/or Articles 3 and/or 8 ECHR, having regard to the Respondent’s obligations under s.3 of the European Convention on Human Rights 2003, in the following respect: (i) The Respondent has given no adequate regard to the Applicant’s submissions that transfer to Belgium in the current circumstances would expose her to high risk of infection and/or detention, contrary to Arts. 4, 6 and 7 Charter/Arts. 3, 5 and 8 ECHR. (ii) Contrary to Art. 7 Charter/Art. 8 ECHR, the Respondent has given no adequate regard to the Applicant’s integration into the State, or to the period of system she has spent in the State (three years) in contrast to the brief period of time (two days) she spent in Belgium. The Respondent has erred in finding that the Applicant’s Article 8.1 ECHR rights (or Art. 7 Charter rights) have not been engaged or breached. (iii) The Respondent has erred in law and/or fettered her discretion in suggesting that the Applicant is required to demonstrate “exceptional circumstances” for the application of the Dublin Regulations to her case. (iv) The Respondent erred in fact and/or abused her discretion and/or acted unfairly in finding that the material submitted on the Applicant’s behalf “do not disclose any humanitarian or compassionate ground.” The applicant also sought interlocutory injunctive relief preventing her removal from the State pending the determination of the proceedings. She was granted interim injunctive relief on various dates since the inception of the proceedings, including by Ferriter J on 4th November, 2021, when he made an order by way of interim injunction preventing her removal from the State until 18th November.

Held by Ferriter J that, having applied the balance of interests test as set out in Okunade v Minister for Justice [2012] 3 IR 152, the applicant was not entitled to an interlocutory injunction pending the outcome of her judicial review challenge on the facts of the case. In Ferriter J’s view, the Minister’s decision demonstrated on its face that all of the applicant’s representations were considered and gave a concise but perfectly coherent set of reasons as to why the applicant’s submissions were not considered such as to persuade the Minister to exercise her very wide discretion under Article 17 in favour of Ireland assuming jurisdiction to examine the applicant’s international protection application.

Ferriter J refused the relief sought by the applicant and discharged the interim injunction order made by him on 4th November, 2021.

Relief refused.

Judgment of Mr Justice Cian Ferriter delivered this 18th day of November 2021

Introduction

1 In these proceedings, the Applicant seeks an Order of certiorari quashing the decision of the Respondent (“the Minister”) made on 23rd September, 2021, pursuant to Article 17(1) of Regulation (EU) No. 604/2013 (“the Dublin III Regulation” or “the Regulation”, as appropriate), refusing the Applicant's request for the exercise of her discretion to examine the Applicant's application for international protection in Ireland and affirming that she will be transferred to Belgium. I will refer to this decision as “the Article 17 Decision”. Prior to the Article 17 Decision, Belgium was the country which had been determined, on the application of the criteria in Chapter III of the Dublin III Regulation, to be the appropriate country to examine the Applicant's international protection application.

2 The Applicant also sought interlocutory injunctive relief preventing her removal from the State pending the determination of these proceedings. She was granted interim injunctive relief on various dates since the inception of these proceedings, including, most recently, by me on 4th November last, when I made an Order by way of interim injunction preventing her removal from the State until 18th November, which as it happens is the date of this judgment. As the issues raised on this aspect of the case have the potential for application beyond the facts of this case, I have addressed in this judgment whether the Applicant would have been entitled to an interlocutory injunction in the circumstances that obtained at the outset of the proceedings.

Background

3 The background to the matter is as follows. The Applicant is a national of the Democratic Republic of Congo (“DRC”). She had been resident in the Republic of South Africa, from where she travelled to Belgium on 16th October, 2018. The Applicant had been granted refugee status in South Africa.

4 The applicant entered Ireland on 19th October, 2017 and made an application for international protection to the International Protection Office (“IPO”). She disclosed that she had been issued a visa for Belgium and had travelled from South Africa via Brussels. She was interviewed by the IPO pursuant to Article 5 of the Dublin III Regulation on the 9th November, 2018 and again confirmed that she had a visa issued for Belgium and travelled from South Africa to Belgium on 16th October, 2018, where she remained for two days.

5 On 12th November, 2018, the IPO issued a request for information to Belgium under Article 34 of the Dublin III Regulation, to which Belgium responded on 20th November, 2018.

6 On 4th December, 2018, Ireland made a “take-charge” request to Belgium under Articles 12(2), 12(3) and 14(1) of the Dublin III Regulation. On the 14th December, 2018, Belgium confirmed that it would accept the transfer of the Applicant pursuant to Article 12(2).

7 On 19th November, 2018, the Applicant was notified by the IPO that Belgium had accepted responsibility for her international protection application. She was invited to make submissions on any further humanitarian grounds she considered to be relevant within 10 days.

8 On 28th December, 2018, the Applicant's solicitors made an express request to the IPO for discretionary relief under Article 17(1) of the Dublin III Regulation.

9 The Applicant was subsequently issued by IPO with a “Notice of Decision to Transfer Application to Another Member State” on 23rd January, 2019 (the “Transfer Decision”). In the accompanying “Recommendation re Decision to Transfer,” the IPO noted the Article 17 submissions made on the Applicant's behalf by her solicitors, but made no Article 17 determination in her favour.

10 On 1st February, 2019, the Applicant appealed the Transfer Decision to the International Protection Appeals Tribunal (“IPAT” or “Tribunal”). This included a request for the Tribunal to exercise Article 17 discretion, and a challenge to the IPO's failure to exercise the discretion.

11 The Tribunal ultimately affirmed the decision to transfer under Regulation 6(9) of the European Union (Dublin System) Regulations 2014, S.I. 525/2014 (“the 2014 Dublin System Regulations”) on 22nd July, 2021. The Tribunal was satisfied that it did not have Article 17 discretion pursuant to NVU. v. RAT & Ors [2020] IESC 46 (“ NVU”). The Tribunal was further satisfied that it did not have inherent discretion under Regulation 6(9) of the 2014 Dublin System Regulations, also relying on NVU.

12 Following the IPAT Decision, the Department of Justice and Equality (“the Department”) wrote to the Applicant on 6th September, 2021 and instructed her to present to the Garda National Immigration Bureau (“GNIB”) on 16th September, 2021 to make arrangements for her transfer “not later than 21/01/2022.”

14th September 2021 Article 17 Application

13 On 14th September, 2021, the Applicant's solicitors issued a pre-action letter to the Minister, which made an application for Article 17 discretionary relief on behalf of the Applicant.

14 The Applicant made three points in the Article 17 submission contained in the pre-action letter. Firstly, she contended that she “ may be subject to detention in Belgium which implicates her rights under Article 6 of the Charter and/or Article 5 ECHR”. She submitted that “for Article 17 purposes, she does not need to demonstrate that there are systemic flaws in the asylum procedures and reception conditions but rather that humanitarian considerations should apply. She maintains...