FA v The International Protection Appeals Tribunal, The Minister for Justice, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 03 March 2021
• Neutral Citation: [2021] IEHC 147
• Docket Number: RECORD NO. 2017/265/JR
• Court: High Court
• Date: 03 March 2021

Between:

FA

Applicant

and

The International Protection Appeals Tribunal, The Minister for Justice, Ireland and The Attorney General

Respondents

[2021] IEHC 147

RECORD NO. 2017/265/JR

THE HIGH COURT

JUDICIAL REVIEW

Costs – Moot proceedings – Dublin III Regulation – Applicant seeking costs – Whether there were countervailing significant factors which would cause the High Court judge to exercise her discretion in favour of granting the applicant his costs

Facts: The applicant applied to the High Court seeking his costs in a situation where the proceedings had become moot. The respondents, the International Protection Appeals Tribunal, the Minister for Justice, Ireland and the Attorney General, opposed the application and sought an order for their costs in light of the manner in which the applicant had met the cost issue. The proceedings related to the perplexed issue of Article 17 of EU Regulation 604/2013 (the Dublin III Regulation). It was one of approximately 270 cases which were placed in a Holding List while the lead case of NVU v RAT which related to the issue of what body had jurisdiction to exercise the Article 17 discretion, was determined in the High Court and then pursued on appeal through the Court of Appeal and Supreme Court. Submissions were made that had the applicants in the NVU list not instituted the proceedings, they would no longer be in the State and would have been transferred a long time ago. Justification for the institution of the proceedings seemed to be placed on that fact with an assertion that they therefore should get their costs.

Held by Burns J that there no longer remained in existence any conflict capable of being justiciably determined between the parties in the proceedings; the Supreme Court decision in NVU rendered the proceedings moot before the second respondent exercised her discretion to operate Article 17 in the applicant’s favour and nothing remained at issue between the parties which was not governed by the Supreme Court decision. Burns J held that the determination of the Supreme Court in NVU in effect was against the claims of the NVU applicants and the fact that the result for the applicants in the NVU list had been to remain in Ireland to have their international protection claims processed did not arise from the determination of any court proceedings in their favour but rather from the exercise by the second respondent of her Article 17 discretion; there was nothing arising from the NVU determination which required her so to do and indeed it had been averred on her behalf that this decision was taken on grounds unrelated to the reliefs sought. Burns J held that there were no countervailing significant factors in this case which would cause her to exercise her discretion in favour of granting the applicant his costs in this matter. In other proceedings, which she was referred to on behalf of the applicants in the NVU list, it had been averred that the second respondent was of the view that she had sole jurisdiction to exercise the Article 17 discretion from late 2015. In argument before Burns J, the settlement of the S case had been set as a marker when this view was apparent and was being acted upon. Accordingly, Burns J held that as these proceedings were instituted after that date, there was no reason why she would depart from the normal rule.

Burns J held that she would make no order as to costs in respect of the proceedings.

No order as to costs.

JUDGMENT of Ms Justice Tara Burns delivered on 3rd day of March, 2021.

General

1 This is an application for the Applicant's costs in a situation where the proceedings have become moot. The Respondents oppose this application and are seeking an order for their costs in light of the manner in which the Applicant has met the cost issue.

2 The proceedings relate to the perplexed issue of Article 17 of EU Regulation 604/2013 (hereinafter referred to as “the Dublin III Regulation”). It is one of approximately 270 cases which were placed in a Holding List while the lead case of NVU v. RAT which related to the issue of what body had jurisdiction to exercise the Article 17 discretion, was determined in the High Court and then pursued on appeal through the Court of Appeal and Supreme Court.

3 The Dublin III Regulation established the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.

4 Article 17(1) of the Dublin III Regulation recognises that a Member State may, in its discretion, assume responsibility for an international protection application made in its territory notwithstanding that the application of the criteria contained in the Dublin III Regulation establishes that another Member State is responsible for that international protection application.

5 In NVU v. RAT [2020] IESC 46, Charlton J., delivering the judgment of the Supreme Court, set out the background and purpose to the Dublin III Regulation at paragraphs 17–20 as follows:-

“17. A brief background to the Dublin Convention should be set out. A formalised system for deciding which European country was responsible for dealing with an asylum application was originally set out in the Dublin Convention of 1990, achieving the force of law in 1997. It applied also to some non-EU countries through agreement. The Dublin I Regulation was replaced by the Dublin II Regulation in 2003, replacing the Dublin Convention in all EU member states except Denmark, which joined later. Non-EU countries such as Switzerland also joined by agreement. Amendments were proposed which in 2013 became the Dublin III Regulation. In terms of purpose, the system was set up to deter forum choice while providing what is supposed to be an effective, objective and speedy system for the identification of the country responsible for the determination of an application for international protection. While not initially constructed to share out responsibility for applications for international protection, the refugee applications burden forced some changes. What is central to the motivation for the Regulation is the need to have a coherent framework where the same applicant may not make repeated applications for asylum in different countries sequentially and without declaring a prior claim. Important also is the taking of responsibility by countries which issue visas to be the forum for any asylum application. While some countries may have systems that are perceived as slow, or as more sympathetic than others or as capable of being delayed by legal process, the series of Regulations based on the original Dublin Convention of 1990 have as their aim the setting of clear and common standards whereby forum choice by applicants must give way to responsibility of countries to finally determine asylum applications where an application has been made there or travel permission resulted in an applicant being present on that country's territory prior to an asylum application elsewhere.

18. The purpose of the Dublin III Regulation may be seen in the recitals to the Regulation. As recital 3 recalls, it was in consequence of a meeting of the European Council at Tampere in 1999 that agreement emerged on applying the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, in order to ensure that “nobody is sent back to persecution”. In that respect all of the European Council countries “are considered as safe countries for third- country nationals.” It was necessary in that respect, all countries being in principle equal in their protection for those in need of asylum, that there be, as recital 4 declares, “a clear and workable method for determining the Member State responsible for the examination of an asylum application.” This is to be, according to recital 5, “based on objective, fair criteria both for the Member States and for the persons concerned.” The idea was simplicity and ease of application in order to “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.” Regrettably, this family has now been in the country for 5 years pending the resolution of this point for them and for other applicants.

20. Thoroughness, commonality of system, fundamental standards of protection and dispatch in declaring the presence of refugee rights or in declaring that a person is required to leave a jurisdiction are the foundations upon which the Dublin III Regulation is built.”

Unfortunately, the operation of Article 17 within this jurisdiction could not be characterised as simple or rapid with a build-up of approximately 270 cases in the course of four years.

The Applicant's Claim

6 The Applicant applied for asylum within this jurisdiction on 30 June 2015. However, the Applicant had previously been granted permission to remain in the United Kingdom which had expired less than two years prior to his application for asylum within this jurisdiction. Pursuant to Article 12(4) of the Dublin III Regulation, the United Kingdom was the appropriate Member State to determine the Applicant's asylum application and, upon request by this State, agreed to take charge of the application. The Office of the Refugee Applications Commissioner (hereinafter referred to as “ORAC”), who had jurisdiction to determine this issue pursuant to the European Union (Dublin System) Regulations 2014, issued a transfer decision on 6 May 2016.

7 The Applicant appealed this transfer decision to the First Respondent on 9 August 2016. His grounds of appeal included that Article 17 of the Dublin III Regulation was not considered by ORAC. The First...