BK v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 19 January 2022
• Neutral Citation: [2022] IECA 7
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/287

Between

BK

Applicant/Appellant

and

The Minister for Justice

Respondent

[2022] IECA 7

Edwards J.

Faherty J.

Collins J.

Record No.: 2021/287

THE COURT OF APPEAL

Judicial review – Interlocutory injunction – Article 17(1) of Regulation (EU) No 604/2013 – Appellant seeking judicial review and an interlocutory injunction – Whether the respondent erred in requiring the appellant to demonstrate exceptional circumstances warranting the exercise of the Article 17(1) discretion (Regulation (EU) No 604/2013) in her favour

Facts: The respondent, the Minister for Justice, on 23 September 2021, having read and considered the appellant’s request that the Minister exercise discretion so that the appellant’s international protection claim would be determined in the State, decided that the materials submitted by the appellant did not disclose any humanitarian or compassionate ground such that the Minister would invoke Article 17(1) of Regulation (EU) No 604/2013 (Dublin III). The appellant applied to the High Court seeking an order of certiorari of the Article 17 decision. An injunction restraining the Minister from taking any further steps in relation to the removal of the appellant from the State pending the determination of the judicial review proceedings was also sought. The appellant appealed to the Court of Appeal from the substantive decision of the High Court judge refusing certiorari. An overarching complaint made by the appellant was that the Minister erred in requiring her to demonstrate “exceptional circumstances” warranting the exercise of the Article 17(1) discretion in her favour. It was said that the Minister did not properly engage with the appellant’s claim that she faced the risk of detention or other ill-treatment in the event of her transfer to Belgium in breach of Article 6 of the Charter of Fundamental Rights of the European Union/Article 5 of the European Convention on Human Rights (ECHR). It was also said that the Minister failed to engage appropriately with the appellant’s stated concerns regarding Covid-19. It was said that the Minister erred in finding that the appellant’s rights under Article 8(1) ECHR (Article 7 of the Charter) had not been engaged or breached. The remaining grounds of appeal were directed to the judge’s refusal of the interlocutory injunction.

Held by Collins J that there would be nothing improper in the Minister taking the view that applicants should identify some exceptional circumstance – in the sense of some circumstance warranting the exercise of that “derogation” and the consequent disapplication of the ordinary Dublin III rules – in their particular case. Collins J held that the material relied on before the Minister did not substantiate the appellant’s stated concerns. Collins J held that it was clear that the Minister did have regard to the appellant’s integration in the State. Collins J dismissed the appellant’s appeal from the decision of the judge to dismiss her application for judicial review of the Article 17 decision. Collins J dismissed the appeal from the judge’s refusal to grant an interlocutory injunction on the basis that the appeal was moot.

Collins J dismissed the appellant’s substantive appeal. Collins J held that the injunction granted by the Court at the conclusion of the appeal hearing must be discharged.

Appeal dismissed.

No further redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 19 January 2022

BACKGROUND

1 This appeal raises difficult issues regarding the implementation and application of Regulation (EU) No 604/2013 (“ Dublin III”) and the operation of the Dublin system in the State which have already been the subject of many decisions of the Irish courts and of the Court of Justice.

The Dublin System

2 Dublin III sets out the criteria and mechanisms for determining the Member State responsible for examining applications for international protection made in one of the Member States by a third country national or stateless person. Dublin III repealed and replaced Regulation (EC) No 343/2003 (“ Dublin II”) which had in turn replaced the Dublin Convention. 1 The Dublin system is a critical component of the European Common Asylum System (ECAS) adopted by the EU following the Tampere European Council in 1999. Article 78 TFEU confers broad competence on the Union in this area.

3 Article 3(1) of Dublin III provides that applications for international protection by a third-county national or stateless person who applies on the territory of any Member State “ shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.” Chapter III then sets out a hierarchy of criteria for determining the responsible Member State. These criteria are intended to provide “ a clear and workable method” which “ should .. make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection.” (Recitals (5) & (6)). Once the Member State responsible has been identified, it is obliged (as the case may be) to “ take charge” or “ take back” the applicant or other person (Dublin III applies to certain persons who have not made an application in the requesting Member State as well as to persons who have) and, where relevant, to examine and determine their application for protection (Article 18).

4 Chapter VI makes detailed provision for the procedures to be applied. Where a Member State accepts a take charge or take back request “the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection” (Article 26(1)). Article 27 then provides that the person concerned “ shall have the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a transfer decision, before a court or tribunal”. Recital (19) expressly links such remedy to Article 47 of the Charter of Fundamental Rights of the European Union ( “the Charter”) and states that an effective remedy against “ decisions regarding transfer” should “ cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.”

5 Article 19(2) Dublin II had also provided for “ an appeal or a review” against a decision to transfer but in much briefer terms and the scope of such appeal or review had been interpreted narrowly by the CJEU (Case C-394/12, Abdullahi v Bundesasylamt [2014] 1 WLR 1895). In contrast, in a series of decisions, beginning with Case C-63/15 Ghezelbash v Staatssercretaris van Veiligheid en Justitie [2016] 1 WLR 3969 “ Ghezelbash”), the CJEU has emphasised the broad scope of the Article 27 remedy (see also Case C-578/16 CK v Republika Slovenija (“ CK”), Case C-155/15 Karim v Migrationsverket; Case C-670/16 Mengesteab v Germany [2018] 1 WLR 865; Case C-201/16 Shiri v Bundesamt fur Fremdenwesen und Asyl [2018] 1 WLR 3384 and Case C-194/19 HA v Belgium). The Article 27 remedy encompasses, but is by no means limited to, disputes concerning the application of the criteria for determining the Member State responsible under Dublin III.

6 Article 27(2) requires Member States to “ provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1”. Article 27(3) then provides that:

“For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:

(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or

(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or

(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.”

7 Article 17 of the Dublin III provides that “ [b]y way of derogation from Article 3(1)”, any 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 this Regulation”. Provision to the same effect was made in Dublin II, Article 3(2). While recital (17) refers to humanitarian and compassionate grounds “ in particular”, Article 17(1) is not so limited and is “intended to allow each member state to decide, in its absolute discretion, on the basis of political, humanitarian or practical considerations, to examine an asylum application even if it is not responsible under the criteria laid down” in Chapter III: Case C-661/17 MA v International Protection Appeals Tribunal [2019] 1 WLR 4975 (“ MA”)

8 As will become apparent, Articles 17(1) and Article 27, and their interaction, are central to the issues raised on...