A. A. H. v The International Protection Appeals Tribunal and The Minister for Justice and Equality, Ireland, and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 06 December 2024
• Neutral Citation: [2024] IEHC 699
• Docket Number: RECORD NO. 2024 23 JR
• Court: High Court

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)

Between

A. A. H.

Applicant

and

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

Respondents

Between

M. H. A.

Applicant

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

[2024] IEHC 699

RECORD NO. 2024 23 JR

RECORD NO. 2024 63 JR

THE HIGH COURT

JUDICIAL REVIEW

International protection – Procedural safeguards – Standard of proof – Applicants seeking international protection – Whether procedural safeguards were inadequate

Facts: The first respondent, the International Protection Appeals Tribunal (the Tribunal), decided that applications for international protection made by the applicants, two unrelated Somali nationals, were inadmissible under s. 21(2)(a) of International Protection Act 2015, because they had each been granted protection in Greece before seeking protection in Ireland. The grounds of challenge pursued by separate counsel acting on behalf of the applicants in each case were the inadequacy of the procedural safeguards applied in the decision-making process, the standard of proof and the evidential burden applied by the Tribunal in reviewing the risk of harm to the Applicants. In one of the two cases, the grounds of challenge included a plea that s. 21(7) of the 2015 Act is unconstitutional insofar as it excludes any possibility of an oral hearing in respect of an appeal under s. 21(6).

Held by the High Court (Phelan J) that the decision in neither case was unreasonable nor tainted by error of law. Phelan J held that both decisions were properly grounded in and flowed from the assessment of the applicants’ personal circumstances and the absence of any vulnerabilities on their parts, judged in the context of country of origin information (COI) in relation to living conditions for beneficiaries of international protection in Greece; in the circumstances, the Tribunal’s conclusions against a real risk of extreme material poverty placing the applicants in situations of such gravity that it may be equated with inhuman or degrading treatment did not disclose irrationality or other unlawfulness. Phelan J held that the decisions in each case were taken on a proper identification of and application of the burden of proof in cases of this nature where, in the mutual trust context where a presumption that fundamental values are safeguarded in other Member States applies, the individual who asserts a real risk or serious risk of harm reaching the threshold for protection under Article 4 of the EU Charter of Fundamental Rights and Freedoms, must establish a risk which arises in his individual or personal circumstances as assessed in the light of up to date, objective COI in respect of general or systemic deficiencies in the other Member State. Phelan J was satisfied that the decisions in both cases were taken following a procedurally fair process in which an oral stage was provided and in which sufficient opportunity was afforded to the applicants to provide information relevant to the fair and proper assessment of their claims. Phelan J found that no circumstances had been disclosed which would give rise to a requirement for an oral hearing before the Tribunal as an incident of the requirements of constitutional justice. Regarding the contention that s. 21(7) is unconstitutional by reason of its exclusion of an oral hearing at Tribunal stage, Phelan J held that no argument of any substance had been pressed in relation to that claim.

Phelan J dismissed both proceedings.

Proceedings dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 6 ^th day of December, 2024

INDEX

INTRODUCTION	3
FACTUAL BACKGROUND	4
Mr. A – the First Applicant	4
Mr H – the Second Applicant	7
THE TRIBUNAL DECISIONS	9
Mr. A's Case	11
Mr. H's Case	16
STATUTORY FRAMEWORK	19
DISCUSSION AND DECISION	21
Preliminary Matters	21
Grant of Leave	22
Extension of Time	22
The Common European Asylum System (CEAS)	23
The Irish Context and the Power to Refuse to make an Inadmissibility Recommendation	34
Stating and Applying the Legal Test in the Cases of Mr. A and H	36
Mr. A's Case	36
Mr. H's Case	43
Failure to Apply the Relevant Test	43
Burden of Proof	43
Conflicting Case-Law	47
Medical Issues	48
Private Life Rights	49
Irrationality in the Assessment of Risk of Poverty	49
Procedural Safeguards and the Right to an Oral Hearing	52
Constitutionality of s. 21(7) of the 2015 Act	57
Obligation to make further Inquiries	58
Due Process Requirements in relation to Documents relied upon by Tribunal	63
Constitutional Right – Article 40.3 of the Constitution	65
CONCLUSION	68

INTRODUCTION

1 . Both these cases concern decisions by the International Protection Appeals Tribunal (hereinafter “the Tribunal”) pursuant to s. 21(9) of International Protection Act, 2015 (as amended) (hereinafter “the 2015 Act”) in which it was found that applications for international protection made by two unrelated Somali nationals were inadmissible under s. 21(2)(a) of the 2015 Act, because they had each been granted protection in Greece before seeking protection in Ireland. A Return Order under s. 51A of the 2015 Act has yet to be made in either case.

2 . Each Applicant seeks to have their application admitted to the international protection process in Ireland because of conditions in Greece which they say result in destitution, homelessness and/or extreme material poverty and are such as to give rise to a real or serious risk of a breach of their fundamental rights as protected under the Constitution and/or s. 3 of the European Convention on Human Rights Act, 2003 (specifically, Article 3 of the European Convention on Human Rights – hereinafter “the Convention”) and/or Article 4 of the EU Charter of Fundamental Rights and Freedoms (hereinafter “the Charter”). It is maintained by the Applicants in these proceedings that the decision to find the applications inadmissible in each case is flawed on grounds which might broadly be described as a failure to properly assess this risk in accordance with law.

3 . Although each matter was pleaded individually and with differences to be found between them, grounds of challenge pursued by separate counsel acting on behalf of the Applicants in each case may be summarized as: inadequacy of the procedural safeguards applied in the decision-making process (most specifically, the lack of an oral hearing in circumstances where s. 21(7)(a) requires that the Tribunal decision be made without an oral hearing and the failure to put matters arising from documentation considered to the Applicants), the standard of proof and the evidential burden applied by the Tribunal in reviewing the risk of harm to the Applicants. In one of the two cases (the case on behalf of the Applicant hereinafter referred to as “Mr. H”), the grounds of challenge include a plea that s. 21(7) of the 2015 Act is unconstitutional insofar as it excludes any possibility of an oral hearing in respect of an appeal under s. 21(6).

4 . It is of some significance that these issues arise in the context of the mutual trust underpinning the Common European Asylum System (hereinafter “the CEAS”) and the requirement to ensure compliance with the Charter within the field of operation of EU law.

5 . Core to the aims and objectives of the CEAS is the avoidance of secondary movement by international protection seekers which impact on the proper functioning of a system based on the principle that one Member State is responsible for an asylum application. However, in an unusual application of the principle of mutual trust in these cases, it is contended on behalf of one of the Applicants that the principle of mutual trust extends to preclude the making of an inadmissibility decision in circumstances where decisions have been made in other Member States to refuse to return international protection beneficiaries on the basis that their basic needs (“ bed, bread, soap”) could not be met in Greece.

6 . The cases come before me for telescoped hearing as lead or “ pathfinder” cases for a much larger group of cases collectively referred to as the “ Greek Transfer Cases”. Notwithstanding the quasi-pathfinder status of these proceedings, a delay issue has been raised on behalf of the Respondents in respect of one of the cases (the case of the Applicant hereinafter referred to as “Mr. A”). It further bears note that these cases were not first in time chronologically. Earlier cases falling within a broader category of Greek Transfer Cases have settled without court determination. In giving judgment in these cases I make some findings of a general nature which are likely to have broader application, but some findings are fact specific and are made having regard to the particular facts of the cases before me and in the light of the arguments canvassed.

FACTUAL BACKGROUND

Mr. A – the First Applicant

7 . Mr. A is a national of Somalia, born in May, 1999. He is a member of the Madhibaan clan, a minority clan in Somalia which is persecuted by the majority clans. His wife is a member of the Taulafo clan, which is a sub-clan of the majority Daarod clan. They married in secret. It is claimed that when the marriage was discovered, he was threatened with death because of his clan status. He evaded an attempt to kidnap him, subsequently fleeing Somalia to ensure his and his wife's safety.

8 . Having fled Somalia in August, 2019, Mr. A claims he then went to Turkey where he remained for 4 months. Next, he went to Greece where he applied for international protection on the 24 ^th December, 2019, thereafter...