H.N. v The International Protections Appeals Tribunal

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 19 April 2018
• Neutral Citation: [2018] IECA 102
• Date: 19 April 2018
• Docket Number: Neutral Citation Number: [2018] IECA 102

H.N.

APPLICANT/APPELLANT

- AND -

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS/APPELLEES

[2018] IECA 102

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2018] IECA 102

Record No. 2017/147

THE COURT OF APPEAL

Immigration and asylum – Dublin III Regulation – Judicial review – Appellant seeking to challenge the validity of the respondent's decision – Whether the respondent was entitled to exercise the discretion conferred by Article 17 of the Dublin III Regulation

Facts: The appellant, an Afghan, on the 13th April 2016, applied for asylum in the State, but a search of the Eurodac database revealed that he had already unsuccessfully applied for asylum in the UK on the 8th June 2010. On the 13th May 2018 the UK authorities agreed to a "take back" request from the State in accordance with Article 18(1)(b) of the Dublin III Regulation (Council Regulation (EC) No. 604/2013). The Refugee Applications Commissioner subsequently made a decision on the 31st May 2016 to transfer the applicant to the UK. That decision was then appealed by the appellant to the first respondent, the International Protection Appeals Tribunal (IPAT). That appeal was dismissed by a decision delivered on the 1st February 2017. The appellant then sought to challenge the validity of the IPAT decision in judicial review proceedings. By decision dated the 13th March 2017 leave to apply for judicial review was granted by the High Court (O'Regan J) on a number of grounds. In her ruling, however, O'Regan J, declined to grant leave on two particular grounds, namely, whether (i) the IPAT itself was entitled to exercise the discretion conferred by Article 17 of the Dublin III Regulation and (ii) whether the IPAT was entitled itself to have regard to the potential impact of Article 8 ECHR in deciding whether or not to set aside the transfer order. The appellant appealed to the Court of Appeal against that decision refusing leave on those grounds.

Held by Hogan J that, having considered Case C-578/16 PPU C.K. v Republika Slovenija EU:C: 2017: 127 and the findings of fact made by the Tribunal member, the Tribunal was under an obligation to consider exercising the Article 17(1) discretionary power and, where necessary, to examine whether the condition of the appellant's mental health was sufficiently robust not only to withstand a transfer to the UK, but also to take account of all "significant and permanent consequences" which might flow from that transfer.

Hogan J held that he would allow the appeal, at least in part. He held that he would accordingly vary the order of the High Court by granting the appellant leave to argue the following additional ground: "The respondent Tribunal erred in law by ruling that it had no jurisdiction to exercise the jurisdiction conferred by Article 17(1) of the Dublin III Regulation and by failing to consider the consequences for the applicant's mental health of physically transporting him from Ireland to the United Kingdom and all the significant and permanent consequences that might furthermore arise from such a transfer."

Appeal allowed in part.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of April 2018

1 This appeal raises some important questions regarding the operation of the Dublin III Regulation ( Council Regulation (EC) No. 604/2013)('Dublin III') and, in particular, the proper interpretation of the discretionary provisions of Article 17(1) of that Regulation.

2 The applicant, H.N., is an Afghan who was born on the 4th May 1992. On the 13th April 2016 Mr. N. applied for asylum in this State, but a search of the Eurodac database revealed that he had already unsuccessfully applied for asylum in the United Kingdom on the 8th June 2010. On the 13th May 2018 the UK authorities agreed to a 'take back' request from this State in accordance with Article 18(1)(b) of Dublin III. (As it happens, the relevant inter-State correspondence refers in error to Article 18(1)(b), whereas this case is in fact governed by Article 18(1)(d). For reasons I will shortly set out, nothing really turns on the mis-attribution of the relevant provisions of Dublin III Regulation in that correspondence.) The Refugee Applications Commissioner subsequently made a decision on the 31st May 2016 to transfer the applicant to the U.K.

3 This decision was then appealed by Mr. N. to the International Protection Appeals Tribunal ('IPAT'), which appeal was dismissed by a decision delivered on the 1st February 2017. The applicant then sought to challenge the validity of the IPAT decision in judicial review proceedings. By decision dated the 13th March 2017 leave to apply for judicial review was granted by the High Court (O'Regan J.) on a number of grounds.

4 In her ruling, however, O'Regan J., however, declined to grant leave on two particular grounds, namely, whether (i) the IPAT itself was entitled to exercise the discretion conferred by Article 17 of the Dublin III Regulation and (ii) whether the IPAT was entitled itself to have regard to the potential impact of Article 8 ECHR in deciding whether or not to set aside the transfer order. The applicant has now appealed to this Court against that decision refusing leave on these grounds. During the course of the appeal this Court was informed that upwards of 100 cases are currently pending in the High Court in which these particular issues have been raised. Given the practical importance of these questions, this Court decided to reserve judgment.

5 Before considering these questions it is necessary first to set out the background to the appeal and, in particular, to consider the findings and conclusions of the IPAT decision. It would nevertheless be only appropriate at this juncture to acknowledge in the first instance the very careful and thoughtful nature of the ruling delivered by the Tribunal member.

The IPAT decision

6 The IPAT first drew attention to the fact that the parties were agreed that although the inter-State correspondence had referred to Article 18(1)(b) of the Dublin III Regulation, the correct legal basis for the transfer was in fact Article 18(1)(d) which provides:

'The Member State responsible under the Regulation shall be obliged to:

(d) take back, under the conditions laid down in Articles 23, 24, 25 and 29, a third country national....whose application has been rejected and who made an...