M.I.F. v International Protection Appeals Tribunal

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Judgment Date19 Feb 2018
Neutral Citation[2018] IECA 36
Docket NumberNeutral Citation Number: [2018] IECA 36

[2018] IECA 36

THE COURT OF APPEAL

Hogan J.

Irvine J.

Hogan J.

Whelan J.

Neutral Citation Number: [2018] IECA 36

Record No. 2017/244

BETWEEN
M.I.F.
APPELLANT
- AND -
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL,
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

European Union law – Judicial review – Asylum application – Appellant seeking leave to apply for judicial review to argue that an asylum seeker enjoys a right under Article 31 of the Geneva Convention to choose the country in which he will make an application for asylum – Whether the element of choice afforded by the Geneva Convention as asserted by the appellant was unreasonably overstated

Facts: The High Court (O'Regan J), in an ex tempore ruling delivered on the 24th July 2017, refused to grant the appellant leave to apply for judicial review to argue that an asylum seeker enjoys a right under Article 31 of the Geneva Convention Relating to the Status of Refugees (1951) to choose the country in which he will make an application for asylum, while granting leave on other grounds, citing for this purpose an earlier decision of O'Regan J's in M.A.H. v International Protection Tribunal [2017] IEHC 462 where she had stated that "the element of choice afforded by the Geneva Convention as asserted by the applicant is unreasonably overstated." The appellant appealed to the Court of Appeal against that ruling, proposing first that the terms of the Geneva Convention must be afforded supremacy in all respects so that in the case of any inconsistency it should prevail over any provisions of EU law providing to the contrary and, second, Article 31 the Geneva Convention entitles an applicant to choose the country in which to apply for asylum; as Regulation (EU) 604/2013 (the Dublin III Regulation) takes away and curtails that right to choose, it was said, accordingly, that it is to that extent thereby invalid and incompatible with the Charter of Fundamental Rights of the European Union and the TFEU.

Held by Hogan J that while Article 31 of the Geneva Convention confers some element of choice to those seeking refugee status as to the country in which they will make their application for status, that choice is, nevertheless, one which is largely confined. Hogan J held that the choice in question is really confined to those applicants who are en route to a particular destination and whose choice of country of refuge is not nullified simply because they did not make an application in a Contracting State where they were simply stopping over or transiting; in particular, Article 31 does not give refugee applicants an open-ended choice of the kind claimed by the appellant. Hogan J held that within the context of the EU, Article 31 of the Geneva Convention is, in any event, supplemented and developed by the existence of a multi-lateral agreement between the Member States of the Union reflected in the Dublin III Regulation which provides for a system of jurisdiction allocation between those Member States which is designed to avoid forum shopping and potentially abusive applications in a multiplicity of States; that system of regulation is, moreover, expressly contemplated by Article 78(2)(e) TFEU. Hogan J held that it could not be said that a system expressly authorised by the Treaties could in itself be unlawful on the ground that it is contrary to an international treaty (such as the Geneva Convention) which, in any event, is not in itself part of the law of the EU.

Hogan J held that because he did not think that the case reached even the threshold of arguability required in leave applications of this kind, the ruling of O'Regan J regarding the grounds and reliefs in respect of which she refused leave was correct and that the appeal should, accordingly, be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of February 2018
1

The issue raised in this appeal is essentially whether an asylum seeker enjoy a right under Article 31 of the Geneva Convention Relating to the Status of Refugees (1951) to choose the country in which he will make an application for asylum and, if so, are the provisions of Regulation (EU) 604/2013 ('the Dublin III Regulation') invalid on this account? In her ex tempore ruling delivered in the High Court on the 24th July 2017 O'Regan J. refused to grant the applicant leave to apply for judicial review to argue this particular ground (while granting leave on other grounds), citing for this purpose an earlier decision of hers in M.A.H. v. International Protection Tribunal [2017] IEHC 462 where she had stated that 'the element of choice afforded by the Geneva Convention as asserted by the applicant is unreasonably overstated.'

2

The applicant has now appealed to this Court. During the course of the appeal we were informed that there are upwards of one hundred similar cases pending in the High Court and which are awaiting the outcome of this appeal. Even allowing for the fact that this application is governed by the lower threshold of arguability governing ordinary applications for leave to apply for judicial review which is to be found in the judgment of the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 349, for my part I do not consider that it can plausibly be argued that the Dublin III Regulation is invalid on this account.

The background to the present application
3

Before explaining why I reach this conclusion, it is necessary first to sketch out the background facts to this appeal. On the 30th April 2015, the applicant, Mr. F. made an application for asylum in the State. Mr. F., a Pakistani national, was interviewed pursuant to s. 8 of the Refugee Act 1996 (as amended)('the 1996 Act') on the 15th May 2015. On the 18th May 2015 an information request (including his fingerprints) was sent pursuant to Article 34 of EU Regulation 604/2013 to the United Kingdom. It ultimately transpired that the applicant's fingerprints were present in the records of the UK authorities. As it happens, Mr. F. had lived in the U.K. from April 2011 to September 2013. He claims that an incident occurred in Pakistan in October 2013 which forms the basis of his application for asylum. He returned to the U.K. in November 2013 but travelled to the State in April 2015. He had not sought asylum at any time in the U.K.

4

A 'take charge' request was issued to the U.K. authorities on the 27th October 2015 and the U.K. agreed that it would accept the transfer of Mr. F. pursuant to Article 12(4) of the Dublin III Regulation. The Refugee Applications Commissioner (the predecessor to the present respondent) notified the applicant on the 16th March 2016 that it had decided that the U.K. was responsible for processing the applicant's claim for international protection. On the 8th April 2016 the applicant appealed the decision of the Refugee Applications Commissioner and, following an oral hearing before the International Protection Appeals Tribunal on the 29th March 2017, the applicant's appeal was rejected by decision of the 11th April 2017. It is the latter decision which is challenged in these judicial review proceedings.

5

Leave to apply for judicial review was granted by O'Regan J. in respect of all reliefs claimed, save two, which were refused. The two reliefs sought at No. 6 and No. 7 of the applicant's grounding statement were in the following terms:

'6. A declaration by way of application for judicial review that Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26th June 2013 ['the Dublin III Regulation'] establishing 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 (recast) is invalid.

7. A declaration that an applicant for international protection is entitled to choose the State or Country in which to apply for international protection.'

6

In effect, therefore, Mr. F. contends that the Geneva Convention gives him the right to choose Ireland as the State in which he will make his request for asylum and that insofar as the Dublin III Regulation provides that he must make it first in the U.K., it is to that extent invalid.

The relevant Treaty and Legislative Provisions
7

It is next necessary to consider the relevant Treaty and legislative provisions upon which Mr. F. relies. They are as follows: First, recital 40 of the Dublin III Regulation states that:

'the establishment of 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.......'

8

Second, Article 18 of the Charter of Fundamental Rights of the European Union states:

'The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.' (emphasis added).

9

Third, the relevant recitals to the Geneva Convention provide respectively:

'CONSIDERING that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot be achieved without international co-operation. EXPRESSING the wish that all States, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States.'

10

Fourth, Article 31 of the Geneva Convention provides protection to refugees from prosecution and the imposition of penalties by reason of the illegal entry or presence in the host state,...

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