BS v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,MR. JUSTICE MICHAEL PEART
• Judgment Date: 14 June 2017
• Neutral Citation: [2017] IECA 179
• Date: 14 June 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 179 Record No. 2016/436

BETWEEN/

BS

AND

RS

APPLICANTS / APPELLANTS

- AND -

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

- AND -

THE REFUGEE APPLICATIONS COMMISSIONER

NOTICE PARTY

[2017] IECA 179

Neutral Citation Number: [2017] IECA 179

Record No. 2016/436

THE COURT OF APPEAL

Immigration and asylum – Refugee status – Order of certiorari – Appellants seeking an order of certiorari to quash the decision of the respondent – Whether trial judge erred in holding that the appellants do not have a right to challenge any non-compliance by the State with the requirements of Article 34 Regulation (EU) No 604/2013

Facts: The appellants appealed to the Court of Appeal from an order of the High Court (Humphreys J) made on the 29th July 2016 refusing reliefs which the appellants had sought by way of judicial review. The principal relief sought was an order of certiorari to quash the decision of the first respondent, the Refugee Appeals Tribunal, dated the 14th July 2015 which upheld the decision of the Office of the Refugee Applications Commissioner dated the 19th May 2015 made pursuant to Article 12 of Regulation (EU) No. 604/2013 (the Dublin III Regulation) that the UK is the member state responsible for determining their application for asylum. That decision carried with it the consequence that the appellants would be transferred to the UK for the purpose of assessing their applications for a declaration of refugee status. The appellants' notice of appeal stated their grounds of appeal as follows: 1) The trial judge erred in holding that the appellants do not have a right to challenge any non-compliance by the State with the requirements of Article 34 Regulation (EU) No 604/2013; 2) The trial judge erred in holding that no breach of Article 34 of Regulation (EU) No 604/2013 or any associated data protection law took place; 3) The trial judge erred in holding that the 'take charge requests' in this case complied with the requirement to be made 'as quickly as possible' pursuant to Article 21 of Regulation (EU) No 604/2013, and/or that the appellants do not have a right to challenge any non-compliance with this requirement; 4) The trial judge erred in holding that the evidence before the Tribunal was sufficient to ground the conclusion that the proofs required to establish that the appellants had a valid visa for the UK within the meaning of Article 12 (2) of Regulation (EU) No 604/2013; 5) The trial judge erred in holding that the application for judicial review warranted being dismissed on the basis of a lack of candour or "abuse of the asylum and immigration systems".

Held by Peart J that there is nothing in the Regulation which suggests that a right of effective challenge to a transfer decision under Article 27 because of a failure to correctly apply the criteria in Chapter III, carries with it a concomitant right of challenge to that decision because the member state to which the initial asylum application was made may have filled up the Annex V request form either incorrectly, incompletely or otherwise not strictly in compliance with the provisions of Article 34 or the prescribed form itself. Peart J held that he would uphold the conclusion of the trial judge that any such frailty is not an infringement of the rights of the applicant, and that it does not give rise to any cause of action on the part of the appellants. Peart J was satisfied that the trial judge was correct to hold that there was no breach of data protection law either under Article 34 or under the Data Protection Act 1988. Peart J held that even though there was a short delay in the making of the take charge request following the receipt of the information from the UK authority – and in a case where false information was given by the appellants in their applications for asylum which necessitated the request for information in the first place – it would be a startling proposition if that was to invalidate the transfer request which was accepted rapidly by the UK, with the result that the incorrect member state would be required to assume an unintended responsibility for examining these applications for asylum.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 14TH DAY OF JUNE 2017

1 This is an appeal from an order of the High Court (Humphreys J.) made on the 29th July 2016 refusing reliefs which the appellants (to whom for convenience I shall refer to jointly as 'S') had sought by way of judicial review. The principal relief sought was an order of certiorari to quash the decision of the Refugee Appeals Tribunal ('the Tribunal') dated the 14th July 2015 which upheld the decision of the Office of the Refugee Applications Commissioner ('ORAC) dated the 19th May 2015 made pursuant to Article 12 of Regulation (EU) No. 604/2013 ('the Dublin III Regulation' or 'the Regulation') that the United Kingdom is the member state responsible for determining their application for asylum. That decision carries with it the consequence that S will be transferred to the United Kingdom for the purpose of assessing their applications for a declaration of refugee status. I will refer to the decision of ORAC as the 'transfer order'.

2 According to their asylum applications S are Albanian nationals who previously lived in Kosova. They arrived in the State on the 12th December 2014, and two days later made an application for asylum by completing the prescribed Form ASY 1. However, and this is not in dispute, they failed to provide a truthful account of the circumstances of their arrival in the State. Had they done so, it would have been unnecessary for ORAC to make a request for information from the United Kingdom authorities pursuant to Article 34 of the Dublin III Regulation as it would have been obvious that the United Kingdom was the member state responsible for determining their applications under the Dublin III Regulation, and that they should be transferred there for that purpose pursuant to the Regulation, since they each had a valid visa issued by the United Kingdom.

3 Following the lodgment of their asylum applications, each later completed the required form entitled "Application for Refugee Status Questionnaire" on the 26th December 2014.

4 On the 15th January 2015, prior to any interview with S, ORAC made an information request to the United Kingdom authorities in respect of S under the provisions of Article 34 of the Dublin III Regulation. The request forms were sent electronically via the secure network "DublinNetIreland" which is used for such communications. When making those requests for information, using the prescribed Annex V request form, ORAC supplied the fingerprints of each applicant which had been taken on arrival in the State. In the box on the request form headed 'Indicative evidence enclosed' the word 'Fingerprints' was inserted. In addition, the request form provided details of their names, dates of birth, and place of birth, and stated under 'Details', that each had claimed asylum in Ireland on the 16th December 2014. I should perhaps add that the Annex V request form is headed 'Request for Information pursuant to Article 34 of the Regulation (EU) No 604/2013'.

5 The information received back from the United Kingdom authorities, in response to these requests, by letter dated the 12th February 2015 satisfied ORAC that under Article 12. 2 of the Regulation the United Kingdom was the member state responsible for examining and determining these applications for refugee status. The information furnished had confirmed that the fingerprints provided matched fingerprints held on the UK records in respect of two persons whose dates of birth matched those of S but under different names. The information was that the persons whose fingerprints matched had each been issued with a multi-visit visa to the UK which were valid from 23rd October 2014 until 23rd April 2015, and had been issued in Warsaw. This information contradicted the answers to a number of questions given by S in their completed questionnaires. At interview on the 30th April 2015 each denied, inter alia, ever having obtained such a visa, and continued to maintain that they were the persons named on their asylum application forms.

6 Chapter III of the Regulation (containing Articles 8-15) provides what is described therein as a hierarchy of criteria for determining which member state is responsible for determining a claim for asylum. Article 12.2 provides that 'where the applicant is in possession of a valid visa, the member state which issued the visa shall be responsible for examining the application for international protection .....'. None of these criteria were applicable other than Article 12.2. ORAC therefore decided that S should be transferred to the United Kingdom on the basis of Article 12.2, and made a so-called "take charge" request to the U.K. authorities under Article 21 of the Regulation in each case on the 16th March 2015 – a date which predated the interviews just referred to. The U.K. authorities responded on the 13th April 2015 (again before those interviews) by indicating that they would accept the transfers. S were each duly notified by letter dated the 19th May 2015 of the transfer decision, and of the reason. They were also informed of their right of appeal to the Tribunal within 15 working days, and were provided with a pro forma notice of appeal for completion should they wish to do so. They availed of their right of appeal. However, each appeal was unsuccessful.

7 There is no need to set forth the grounds of appeal relied upon before the Tribunal. It suffices to say that they included the grounds in respect of which leave was granted to seek judicial review in the High Court, and urged on his appeal.

8 Following the failure of their appeal to the Tribunal, they sought, and were granted,...