D.S. v International Protection Appeals Tribunal & Anor

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 26 November 2025
• Neutral Citation: [2025] IEHC 654
• Docket Number: Record No. 2025/1135JR

Between/

D.S.

Applicant

and

International Protection Appeals Tribunal, The Minister for Justice, Home Affairs and Migration

Respondents

[2025] IEHC 654

Record No. 2025/1135JR

AN ARD-CHÚIRT

THE HIGH COURT

Judicial review – Transfer decision – Risk of inhuman or degrading treatment – Plaintiff challenging the first respondent's decision affirming a transfer decision – Whether the applicant had established a real and proven risk of inhuman or degrading treatment affecting him

Facts: The applicant fled Zimbabwe and travelled to South Africa, Israel, Austria, Germany and Ireland. He said that while he was in Austria, the Austrian authorities issued a take charge request to France which was accepted by the French authorities. He left Austria coming to Ireland via Germany. He applied for international protection. A request was made by Austria to France to extend time for his transfer to France pursuant to Article 29(2) of Regulation (EU) No. 604/2013 (Dublin III), but no response was provided by France. A take back request was issued to Austria. The authorities in Austria rejected the take back request the Austrian authorities had sent a takeback request to France which had been accepted by the French authorities. A take charge request issued to France pursuant to Article 12(2) or (3) of Dublin III. France accepted that request. The applicant was interviewed pursuant to Article 5 of Dublin III and a transfer decision was made by the International Protection Office (the IPO) on 16 November 2023 in relation to the applicant. He appealed that transfer decision to the first respondent, the International Protection Appeals Tribunal (the IPAT), and submitted medical documentation and a medicolegal report dated 18 September 2023 (Dr Giller’s first report). An oral hearing took place on 20 March 2025 and a decision dated 30 June 2025 from the IPAT affirmed the transfer decision. On 1 September 2025, the High Court (O’Regan J) granted the applicant leave to apply for judicial review to challenge the decision of the IPAT.

Held by Bradley J that, having had regard inter alia to the individualised assessment carried out by the IPAT, paragraphs (80) to (87) of the judgment of the Court of Justice of the European Union in C-578/16PPU, CK & Ors v Republika Slovenija including the matters addressed and exhibited in the affidavit of Mr Gallagher, and the IPAT’s assessment as to whether a situation of extreme material poverty was applicable to the applicant’s case, the High Court did not consider that the applicant had established before the IPAT, or in Dr Giller’s medicolegal report dated 18 September 2023, a real and proven risk of inhuman or degrading treatment affecting him, regardless of any systemic flaws that might be considered to apply in France.

Bradley J refused the applicant the reliefs sought in the application for judicial review.

Application refused.

JUDGMENT of Mr. Justice Conleth Bradley delivered on 26 ^th November 2025

INTRODUCTION

Background & Chronology

1 The Applicant is a national of Zimbabwe. He fled Zimbabwe in or around December 2022 and travelled to South Africa, Israel, Austria, Germany and then to Ireland.

2 He says that while he was in Austria, the Austrian authorities issued a take charge request to France on 10 ^th January 2023 which was accepted by the French authorities on 10 ^th February 2023.

3 The Applicant left Austria on 12 ^th April 2023 coming to Ireland via Germany. He arrived in the State on 14 ^th April 2023 and applied on that date for international protection.

4 It appears that on 3 ^rd May 2023, a request was made by Austria to France to extend time for the Applicant's transfer to France pursuant to Article 29(2) of Regulation (EU) No. 604/2013 (“Dublin III”), but that no response was provided by France.

5 On 17 ^th May 2023 a take back request was issued to Austria. Also on 17 ^th May 2023, the authorities in Austria replied rejecting the take back request, because (as set out above) the Austrian authorities had sent a take back request to France on 10 ^th January 2023 which had been accepted by the French authorities on 10 ^th February 2023.

6 On 24 ^th May 2023 a take charge request issued to France pursuant to Article 12( 2) or (3) of Dublin III. France accepted this request on 24 ^th July 2023.

7 The Applicant was interviewed pursuant to Article 5 of Dublin III on 27 ^th September 2023 and a transfer decision was made by the International Protection Office (“the IPO”) on 16 ^th November 2023 in relation to the Applicant.

8 By Notice of Appeal dated 22 ^nd November 2023 the Applicant appealed this transfer decision to the International Protection Appeals Tribunal (“the IPAT”) and submitted medical documentation and a medicolegal report dated 18 ^th September 2023 ( i.e. Dr. Giller's first report).

9 The Applicant initially raised the following four grounds of appeal arising from the decision of the IPO:

“ (1) The IPO has erred in fact and in law in making a decision to transfer the [Applicant] to France for the purposes of processing his application for international protection;

(2) The IPO erred in fact and in law in failing to exercise the discretion provided for under Article 17 of the EU Dublin Regulation (604/2013*) in the [Applicant] 's favour in order to process his application for international protection in Ireland;

(3) The IPO erred in fact and in law in failing to take into account of [his] personal circumstances before making a decision to transfer the [Applicant] to France;

(4) The IPO failed to take account of the risk of refoulement if the [Applicant] is transferred to France.”

10 At paragraphs 3(ix) and (x) of the Applicant's submissions to the IPAT, it was submitted that the Applicant “ is particularly vulnerable. He is HIV positive, suffers from latent TB, and has required medical attention in Ireland. Medicolegal evidence before the Tribunal highlights in particular his mental health and risk in relation to suicide. His medical condition has been impacted significantly [by] his experiences in Austria and Ireland. He is additionally concerned that the language barrier in France would render necessary supports inaccessible … He has a well-founded fear of persecution should he return to Zimbabwe”.

11 An oral hearing took place on 20 ^th March 2025 and a decision dated 30 ^th June 2025 from the IPAT affirmed the transfer decision.

12 On 1 ^st September 2025, the High Court (O'Regan J.) granted the Applicant leave to apply for judicial review to challenge the decision of the IPAT dated 30 ^th June 2025. This application was made on notice to the Respondents, who adopted a neutral position on the application for leave to apply for judicial review.

Initial injunction application

13 Thereafter, the High Court heard an injunction application by the Applicant and refused same. I have been furnished with the unapproved agreed joint note of junior counsel from both parties of the ruling from High Court (O'Regan J.) refusing the injunctive relief on 1 ^st September 2025.

14 The joint note of junior counsel indicates that at the conclusion of his submissions, Mr Conlon SC (for the Applicant) suggested that as the IPAT had been satisfied to assess Dr. Giller's first medicolegal report, it could not be suggested now (on behalf of the Respondents) that it was out of date and, in any event, it was submitted that the IPAT member could have directed the commissioning of an up-to-date report. He suggested that if the Court gave directions for an early trial, the risk of the transfer order ‘timing out’ would not arise.

15 In summary, the note records inter alia the Court (i) holding that the Applicant had the facility to update the medical report, (ii) noting that that Dr. Giller believed at the time of her first report ( i.e. 18 ^th September 2023) that the Applicant was suicidal and (iii) inquiring as to what medical attention he was receiving at this time. The note records the Court referring to the judgment of the High Court (Hyland J.) in RG v IPAT (No. 1) [2023] IEHC 742 and, in this regard, confirming its refusal of the injunction application having regard, in particular, to the focus the decision in RG v IPAT (No. 1) placed on the integrity of the Dublin III system, which had been developed by the Member States and had been reviewed twice. The Court observed that whilst the Applicant had an arguable case, its result was not certain, and the integrity of the system also had to be respected and that it was not appropriate to grant an injunction. The Court also had regard to the fact that the Applicant could be returned under Article 29(3) of Dublin III, if he was found to have been wrongfully transferred but that the State would lose the right to transfer him, if the 6 months expired.

16 On behalf of the Applicant, it was also pointed out that if the Applicant was transferred and committed suicide then the case would become moot and it was noted by the court that if such an assertion was the sole determining factor relevant in every case, no transfer could ever proceed.

17 The joint note of junior counsel records the Court refusing the injunction application and determining that it was appropriate to make the necessary directions to allow for an early hearing. The Court observed that the Applicant's case was somewhat distinguishable from RG (No. 1) and asked the State to bear that in mind and if, when making arrangements for the Applicant's transfer, to have regard to the fact that the Court was taking all necessary steps to facilitate an expedited hearing. Whilst the Court's focus was not to interfere with agreements between Member States, it was attempting to balance rights and asked that it also be borne in mind that the Court's efforts would be of little assistance if the Applicant was transferred before his legal challenge could be determined.

18 Accordingly, after refusing the injunction...