EM v Minister for Justice Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 15 November 2005
• Neutral Citation: [2005] IEHC 403
• Court: High Court
• Docket Number: [2005 No. 908 JR]
• Date: 15 November 2005

[2005] IEHC 403

THE HIGH COURT

[No. 908 J.R./2005]

MAKUMBI v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

EVELYN MAKUMBI

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 7

EEC REG 343/2003 ART 16(1)(c)

EEC REG 343/2003 ART 16(1)(e)

EEC REG 343/2003 ART 13

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 7(4)

REFUGEE ACT 1996 S22(7)EEC REG 343/2003 ART 3.2

REFUGEE ACT 1996 S22CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EEC REG 343/2003 ART 3.1

EEC REG 343/2003 ART 20(1)(d)

EEC REG 343/2003 ART 20.2

REFUGEE ACT 1996 S22(2)

REFUGEE ACT 1996 S22(1)

REFUGEE ACT (SECTION 22) AMDT ORDER SI 500/2004

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 4

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 7(1)

EEC REG 343/2003 ART 16(1)

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 4

EEC REG 343/2003 ART 19(1)

EEC REG 343/2003 ART 16(1)(a)

EEC REG 343/2003 ART 20(1)(e)

XAYLE v REFUGEE APPLICATIONS COMMISSIONER & MIN FOR JUSTICE UNREP CLARKE 10.12.2004

REFUGEE ACT 1996 S22

EAST DONEGAL CO-OP v AG 1970 IR 317

REFUGEE ACT 1996 S8(1)

REFUGEE ACT 1996 S9(2)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

CONSTITUTION ART 26

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

STATUTORY INSTRUMENTS ACT 1947 S1

REFUGEE ACT 1996 (SECTION 22)

ORDER 2003 SI 423/2003 ART 8(9)

REFUGEE ACT 1996 (SECTION 22)

ORDER 2003 SI 423/2003 ART 8(1)

REFUGEE ACT 1996 S9

IMMIGRATION AND ASYLUM

asylum

Transfer order - Fair procedures - Right to life - Fettering discretion - Applicant previously refused asylum in United Kingdom - Claim of risk of suicide raised after transfer order made - Whether Minister had discretion not to implement order - Whether Minister obliged to consider risk of suicide - Whether Minister could revoke transfer order - Refugee Act 1996 (Section 22) Order 2003 (SI 423/2003), art 7 - Statutory Instruments Act 1947 (No 44), s 1 - Refugee Act 1996 (No 17), ss 8, 9 and 22 - Immigration Act 2003 (No 26), s 7(l) - Constitution of Ireland 1937, Article 40.3.2 - Council Regulation (EC) No. 343/2003, arts 1, 3, 4, 7, 8, 15, 16, 19 and 20 - Mandamus granted (2005/908JR - Finlay-Geoghegan - 15/11/2005)

MAKUMBI v MIN FOR JUSTICE

Facts: the applicant applied for asylum in the State, having previously applied for asylum in the United Kingdom. The respondent made a transfer order pursuant to article 7 of the Refugee Act 1996 (Section 22) Order 2003 that the applicant be transferred to the United Kingdom so that her claim for asylum could be processed there. She gave uncontroverted evidence to the High Court that she would be a suicide risk if she were transferred to the United Kingdom. She obtained leave to apply by way of judicial review preventing her transfer to the United Kingdom under the transfer order and requiring the respondent to consider her request to have her claim for asylum processed in Ireland. The applicant contended that where the respondent had made a transfer order and was subsequently presented with medical and factual evidence which prima facie indicated a real risk of suicide if the transfer order were implemented, the respondent was under an obligation to consider the new medical and factual evidence and determine whether or not to implement the transfer order. The respondent contended, inter alia, that he had no discretion not to implement the transfer order or to revoke it or to consider the applicant's application for asylum in this jurisdiction.

Held by Finlay Geoghegan J in granting an injunction restraining the respondent from taking any steps to transfer the applicant to the United Kingdom, a declaration that the respondent had discretion not to implement a transfer order made under article 7(1) of the Refugee Act 1996 (Section 22) Order 2003, a declaration that constitutional justice required the respondent to determined the request of the applicant not to implement the transfer order made in respect of her and a declaration that the respondent had an implied statutory power to revoke a transfer order made under the Order of 2003 that Council Regulation (EC) 343/2003 did not preclude the existence of a discretion not to implement a transfer order made under the Order of 2003 as the scheme of the Regulation of 2003 was to impose on the responsible Member State an obligation to readmit the applicant to its territory but a right and not an obligation on the requesting Member State to transfer the applicant. Xayle (a minor) v. Refugee Applications Commissioner (Unreported, High Court, 10th December, 2004) considered.

That the applicant still had rights under the constitution whilst in the State and the respondent was obliged to uphold her right to life as guaranteed by Article 40.3.2º and a constitutional interpretation of the powers which the respondent could confer on himself by section 22 of the Act of 1996 necessitated an implicit power not to implement, or to revoke, a transfer order where the protection of the life of the applicant required.

Reporter: P.C.

1 JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 15th day of November 2005.

2 The applicant is a national of Uganda, who is stated to have arrived in the State on the 16th March, 2005. On the 29th June, a transfer order was signed on behalf of the respondent pursuant to Article 7 of the Refugee Act 1996 (Section 22) Order 2003 requiring the applicant to leave the State and go to the United Kingdom pursuant to the provisions of Council Regulations (EC) No. 343/2003.

3 On the 22nd August, 2005, leave was granted by order of the High Court (MacMenamin J.) to apply by way of Judicial Review for a number of reliefs all of which are directed to preventing the transfer of the applicant to the United Kingdom pursuant to the said transfer order and requiring that the respondent determine the applicant's request to have her claim for asylum processed in Ireland. A notice of opposition was delivered in which it is contended inter alia that the respondent is obliged to give effect to the transfer order and has no discretion or power not to implement the transfer order or to revoke it or to consider the application to have the applicant's claim for asylum determined in this jurisdiction.

Factual background

4 The applicant made a claim for a declaration of refugee status in the State on the 18th March, 2005. She was fingerprinted by officials of the Refugee Applications Commissioner as part of that process. A EURODAC search was made and it was discovered that she had previously made an application for asylum in the United Kingdom on the 19th March, 2004.

5 On the 28th March, 2005, that applicant completed a questionnaire for the Refugee Applications Commissioner and in response to an express question stated that she had not previously made an application for refugee status elsewhere within the EU. The applicant produced a Ugandan identity card and stated that she had travelled on a Portuguese passport, purchased from an agent, through Kenya and Amsterdam to Dublin.

6 On the 10th May, 2005, an application was made to the U.K. authorities to take charge of the applicant in accordance with Article 16 (1) (c) of Council Regulation EC No. 343/2003) (the Council Regulation). The U.K. agreed on the 24th May, 2005, to take back the applicant in accordance with Article 16 (1)(e) of the Council Regulation.

7 On the 16th June, 2005, a letter was sent to the applicant containing the determination of the Refugee Applications Commissioner (the Commissioner) that". . The United Kingdom is responsible pursuant to the provisions of Articles 13 and Article 16 (1)(e) of Council Regulation EC No. 343/2003 for dealing with your application for asylum." In that letter it was explained to the applicant that Article 16 (1)(e) of the Council Regulation provides that the Member State responsible for examining an application for asylum under the Regulation is obliged to take back a third country national whose application it has rejected and who is in the territory of another Member State without permission. The applicant was also informed that the respondent had been notified of the determination with a view to making arrangements for her transfer to the United Kingdom. She was also informed of her entitlement to appeal the determination to the Refugee Appeals Tribunal but that such appeal would not suspend her transfer to the United Kingdom.

8 An appeal was lodged on behalf of the applicant by the Refugee Legal Service to the Refugee Appeals Tribunal on the 7th July, 2005. This was determined against the applicant and the determination of the Refugee Applications Commissioner affirmed by decision of Mr. James Nicholson member of the Refugee Appeals Tribunal on the 18th July, 2005.

9 In the meantime on the 29th June, 2005, a transfer order requiring the applicant to leave the State and go to the United Kingdom pursuant to the Council Regulation was signed on behalf of the respondent. On the 8th July, 2005, the applicant was sent a letter from the Repatriation Unit of the Department of Justice, Equality and Law Reform pursuant of the provisions of art.7 (4) a of the Refugee Act 1996 (Section 22) Order 2003 ("the 2003 Order") requiring that she present herself to the Garda National Immigration Bureau at Burgh Quay, Dublin 2, on Monday the 18th July, to make arrangements for her removal to the United Kingdom not later than the 25th July, 2005. The applicant's solicitor states on affidavit that following...