K.S. (Pakistan) v The International Protection Appeals Tribunal ; M.H.K. (Bangladesh) v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 25 March 2019 |
| Neutral Citation | [2019] IEHC 176 |
| Date | 25 March 2019 |
| Court | High Court |
| Docket Number | [2018 No. 769 J.R.] [2018 No. 927 J.R.] |
AND
AND
[2019] IEHC 176
[2018 No. 769 J.R.]
[2018 No. 927 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
European law – Orders of certiorari – Labour market access – Applicants seeking orders of certiorari quashing refusals of labour market access – Whether regs. 2 (2) and 11(2) and (12) of the European Communities (Reception Conditions) Regulations 2018 are contrary to the Reception Conditions Directive (Recast) 2013/33/EU
Facts: The applicants in both sets of proceedings sought essentially three substantive reliefs: firstly, orders of certiorari quashing the refusals of labour market access; secondly, declarations that regs. 2 (2) and 11(2) and (12) of the European Communities (Reception Conditions) Regulations 2018 (S.I. No. 230 of 2018) are contrary to the Reception Conditions Directive (Recast) 2013/33/EU; and thirdly, damages. It had been in effect agreed by the parties that the question of damages could be postponed to a later module of the proceedings, if it arose.
Held by Humphreys J that resolution of the proceedings involved the determination of a number of questions of European law. Humphreys J decided, in the exercise of his discretion under art. 267 of the TFEU, to refer those questions to the Court of Justice of the European Union (CJEU).
Humphreys J held that the order would be as follows: (i) that the following questions be referred to the CJEU pursuant to art. 267 of the TFEU: (a) where in interpreting one instrument of EU law that applies in a particular member state an instrument not applying to that member state is adopted at the same time, may regard be had to the latter instrument in interpreting the former instrument; (b) does art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU apply to a person in respect of whom a transfer decision under the Dublin III regulation, Regulation (EU) No. 604/2013, has been made; (c) is a member state in implementing art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU entitled to adopt a general measure that in effect attributes to applicants liable for transfer under the Dublin III regulation, Regulation (EU) No. 604/2013, any delays on or after the making of a transfer decision; (d) where an applicant leaves a member state having failed to seek international protection there and travels to another member state where he or she makes an application for international protection and becomes subject to a decision under the Dublin III regulation, Regulation (EU) No. 604/2013, transferring him or her back to the first member state, can the consequent delay in dealing with the application for protection be attributed to the applicant for the purposes of art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU; (e) where an applicant is liable to transfer to another member state under the Dublin III regulation, Regulation (EU) No. 604/2013, but that transfer is delayed due to judicial review proceedings taken by the applicant which have the consequence of suspending the transfer pursuant to a stay ordered by the court, can the consequent delay in dealing with the application for international protection be attributed to the applicant for the purposes of art. 15 of the Reception Conditions Directive (Recast) 2013/33/EU, either generally or, in particular, where it may be determined in those proceedings that the judicial review is unfounded, manifestly or otherwise, or is an abuse of process; (ii) in the light of the submission from the first respondent, the International Protection Appeals Tribunal, that it was anxious to have directions as to how to deal with applications in the meantime, Humphreys J would respectfully request that the expedited procedure pursuant to r. 105 of the Rules of Procedure of the CJEU be applied; (iii) Humphreys J would hear submissions from counsel as to the appropriate amendment to the proceedings as to the first name of the applicant in the M.H.K. proceedings.
Questions referred to CJEU.
The applicant travelled from Pakistan to the UK in or about February, 2010. He did not apply for international protection there. He then travelled to Ireland in or about May, 2015 and applied for international protection in the State on 11th May, 2015. The Refugee Applications Commissioner decided to transfer the claim under the Dublin system to the UK on 9th March, 2016. This was affirmed by the Refugee Appeals Tribunal on 17th August, 2016. The applicant brought judicial review proceedings [2016 No. 702 J.R.] challenging the failure of the tribunal to apply art. 17 of the Dublin III regulation. Those proceedings remain pending. The applicant has the benefit of a general stay granted by the court in all Dublin system cases whereby the institution of proceedings acts as a stay on transfer (now set out in para. 8(2) of High Court Practice Direction HC81). The applicant did not in fact ask at the tribunal to exercise an art. 17 discretion in his favour and the respondents are contending that this is a fatal obstacle to his success in those judicial review proceedings, relying on M.E. v. Refugee Appeals Tribunal [2017] IEHC 464 (Unreported, O'Regan J., 17th July, 2017). The applicant was invited to discontinue his proceedings and the prospect is that if he does not do so, the respondents are likely to contend that those proceedings are bound to fail or are an abuse of process.
The applicant applied to the Labour Market Access Unit of the Department of Justice and Equality for a labour market access permission under reg. 11(3) of the European Communities (Reception Conditions) Regulations 2018 ( S.I. No. 230 of 2018). That was refused. He applied for a review which was refused on 19th July, 2018. He then appealed that refusal to the International Protection Appeals Tribunal (IPAT), which rejected the appeal on 11th September, 2018. That decision is the one impugned in the proceedings and essentially is a straightforward application of the 2018 regulations, which provide that persons such as the applicant who are liable to transfer under the Dublin system are not entitled to labour market access.
The applicant travelled from Bangladesh to the UK on his own account on 24th October, 2009. His permission there expired when his college closed. He travelled to Ireland on 4th September, 2014 before finding out the result of an application for his extension of leave to remain there. He then applied for international protection in Ireland on 16th February, 2015. On 25th November, 2015, he was issued with a notice of decision to transfer the application to the UK under the Dublin III regulation. He appealed that decision to the Refugee Appeals Tribunal, which refused the appeal on 30th March, 2016. On 18th April, 2016 he applied for judicial review [2016 No. 235 J.R.] challenging the failure of the tribunal to exercise jurisdiction under art. 17 of the Dublin III regulation. Those proceedings remain pending and again the applicant is the beneficiary of the general stay ordered by the court suspending the transfer.
The applicant applied for labour market access under reg. 11(3) of the 2018 regulations, which was refused by the Department on 16th August, 2018. He then applied on 29th August, 2018 for a review of the decision which was refused on 5th September, 2018. On 18th September, 2018, he appealed to the International Protection Appeals Tribunal which rejected the appeal on 17th October, 2018. The tribunal noted that access to the labour market was not a ‘ material reception condition’ and while acknowledging the supremacy of EU law held that, in the light of the jurisprudence as it then stood, jurisdiction to consider disapplying national legislation lay with national courts rather than tribunals.
Leave to seek judicial review in K.S. was granted on 24th September, 2018 and a statement of opposition was furnished on 26th November, 2018. Leave in M.H.K. was granted on 12th November, 2018 and a statement of opposition delivered dated 1st March, 2019. In the M.H.K. proceedings it appears that the applicant has instituted the proceedings under the name of an abbreviation of his first name and that appears to be inappropriate, because pleadings should indicate the full name of the parties. I will therefore hear from counsel as to the appropriate amendment to reflect the applicant's full first name.
Both sets of proceedings seek essentially three substantive reliefs. Firstly, orders of certiorari quashing the refusals of labour market access. Secondly, declarations that regs. 2 (2) and 11(2) and (12) of the 2018 regulations are contrary to the Reception Conditions Directive (Recast) 2013/33/EU. And thirdly, damages. It has been in effect agreed by the parties that the question of damages can be postponed to a later module of the proceedings, if it arises.
I have received helpful submissions on behalf of Mr. K.S. from Mr. Michael Conlon S.C. (with Mr. Eamonn Dornan B.L.), on behalf of Mr. M.H.K., from Mr. Conlon (with Mr. Paul O'Shea B.L.), on behalf of the International Protection Appeals Tribunal, from Ms. Sara Moorhead S.C. and on behalf of the remaining respondents from Mr. Robert Barron S.C. (with Ms. Sarah-Jane Hillery B.L.).
The most pertinent provisions of EU law relied on are as follows:
(i). Article 78 of the TFEU, which envisages a series of measures for a Common European Asylum System, including legislation on reception conditions and on...
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