M.A. (A Minor) v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 November 2017
• Neutral Citation: [2017] IEHC 677
• Court: High Court
• Docket Number: [2017 No. 116 J.R.]
• Date: 08 November 2017

BETWEEN

M.A., S.A.

AND

A.Z. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M.A.) (BANGLADESH)

APPLICANTS

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2017] IEHC 677

Humphreys J.

[2017 No. 116 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Art. 17 of Dublin III Regulation (Reg. (EU) No. 604/2013 – European Union (Dublin System) Regulations 2014 (S.I. No. 525/2014) – Reference to Court of Justice – Urgency – Conflict between art. 6 and art. 17 of Dublin III Regulations – Art. 267 of the Treaty on the Functioning of the European Union ('TFEU')

Facts: The applicants had appealed the decision of the first respondent who affirmed the decision of the Refugee Applications Commissioner ('Commissioner') that the applicants' applications for asylum must be transferred to the UK. The first respondent held that it had no jurisdiction to decide the applicants' appeal under art. 17 of the Dublin III Regulations. The key issue arose in relation to the appropriate authority that was responsible for dealing with the applications under art. 17 as earlier the discretion was vested with the Commissioner and now it was vested with the Minister for Justice and Equality ('Minister') with no right of appeal from its decision in the light of judgment of the High Court in U. v. Refugee Appeals Tribunal [2017] IEHC 490. On the contrary, under reg. 6(1) of the European Union (Dublin System) Regulations 2014, the applicant was given the right to appeal the 'transfer decision' to the appropriate tribunal and that 'transfer decision' was the decision rendered essentially by the 'Commissioner'.

Mr. Justice Richard Humphreys formulated five questions and referred those to the Court of Justice pursuant to art. 267 of TFEU. Those questions pertained to the interplay between art. 6(1) and art. 17 (1) of the Dublin III Regulations. The Court requested the Court of Justice to opine on the concept of effective remedy under art. 17 and had asked whether it was mandatory to provide the right to appeal from the decision of the first instant decision-maker. The Court also sought the opinion of the Court of Justice on the entitlement of the decision-maker to determine the grievance of the mother and daughter conjointly in a single application keeping in mind the best interests of the child. The Court also sought the opinion of the Court of Justice as to whether the powers and functions defined under art. 6 of Dublin III Regulations were distinct from the powers conferred by art. 17.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of November, 2017

1 This is a challenge to a transfer decision under the Dublin III regulation (regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 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). I have heard helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Garry O'Halloran B.L.) for the applicants and Mr. David Conlan Smyth S.C. (with Ms. Sarah-Jane Hillery B.L.) for the respondents and I record my thanks to all of the lawyers involved for their assistance. The point of most general interest in the case relates to the implications for the Dublin system of the process of withdrawal of the UK from the European Union. However in the context of other issues arising I need to first outline some general context in relation to the implementation of art. 17 of the Dublin III regulation in Ireland.

2 The original State position as outlined in a letter in November, 2015 from the asylum policy division of the Department of Justice and Equality to the Legal Aid Board was that the discretion exercisable under art. 17 of the regulation is vested in the Refugee Applications Commissioner and that this was not a matter to be considered by the Refugee Appeals Tribunal at appeal stage. However, there was then a volte face in the State's posture and as of the 25th April, 2017 a different position was articulated in the context of proceedings in U. v. Refugee Appeals Tribunal [2017] IEHC 490 (see para. 5). The current State position is that the function under art. 17 is an executive discretion for the Minister alone. The State continues to maintain that there is no appeal in relation to any decision under the regulation.

Facts

3 The second named applicant came to the UK on a student visa in 2010. The first named applicant followed her on foot of a dependant visa in early 2011. The third named applicant was born in the UK in February, 2014. The parents renewed their visas on an annual basis until the second named applicant's college closed down and their visas were cancelled. They then came to Ireland and applied for asylum on the 12th January, 2016. The third named applicant was included in his mother's application. On the 7th April, 2016 a request was sent to the UK by the Refugee Applications Commissioner to take charge of the applications under the Dublin regulation. On the 1st May, 2016 the UK confirmed its agreement to do so. The applicants raised issues with the Commissioner in relation to the first named applicant's medical problems and also the fact that the third named applicant was under assessment by the HSE in relation to issues concerning autism.

4 The Commissioner recommended transfer to the UK and in that recommendation he considered whether art. 17 should be applied to the applicant's case and decided adversely to the applicants. The applicants then appealed the decision to transfer by notices of appeal to the International Protection Appeals Tribunal dated 14th June, 2016 and made written submissions which focussed primarily on art. 17. The transfer decisions were upheld by the tribunal on 10th January, 2017. The tribunal held that it had no jurisdiction to exercise discretion in relation to art. 17. It also rejected arguments relating to UK withdrawal from the European Union on the basis that it had to deal with the situation as it currently exists.

Relevant provisions of EU law

5 The most pertinent provisions of the Dublin III regulation are as follows:

(i) Article 3(1) which provides that member states shall examine any application for international protection by a third country national or a stateless person who applies on the territory of any one of them including at the border in the transit zones. The application shall be examined by a single member state which shall be the one which the criteria set out in Chapter III indicate is responsible.

(ii) Article 6(1) which provides that the best interests of the child shall be a primary consideration for member states with respect to all procedures provided for in the regulation.

(iii) Article 17(1) which provides that by way of derogation from art. 3(1) each member state may decide to examine an application for international protection lodged with it by a third country national even if such examination is not its responsibility under the criteria laid down in this regulation.

Relevant provisions of national legislation

6 The relevant national legislation is the European Union (Dublin System) Regulations 2014 S.I. No. 525 of 2014. The most pertinent provisions are as follows:

(i) One of the most crucial provisions for present purposes is reg. 2(2) which provides that a word or expression used in the regulations and also in the EU regulation should have the same meaning as in the EU regulation.

(ii) Regulation 6(1) provides that an applicant may appeal against transfer decision and reg. 6(9) goes on to say that the Tribunal shall make a decision either affirming or setting aside the transfer decision.

(iii) The term ' transfer decision' is defined in reg. 2(1) as a decision by the Commissioner in accordance with the EU regulation to transfer an applicant where the State is the requesting member state and the requested member state has accepted to take charge of or to take back that applicant. It is not defined as to whether the transfer decision includes any implicit or explicit decision not to exercise the art. 17 discretion; thus there is no explicit appeal against a decision to exercise or not exercise that art. 17 function, although if one interpreted the regulations as conferring art. 17 jurisdiction on the Commissioner then an issue would arise as to how to interpret the scope of the appeal from the Commissioner to the Tribunal.

(iv) The other key provision for present purposes is reg. 3. Regulation 3(1) states that the Commissioner performs the functions of a determining, requesting and requested member state. Regulation 3(2) provides that the Minister performs the functions of a transferring member state. The phrase 'determining member state' is referred to in the EU regulation in arts. 3(2), 5(1) and 20(4).

(v) Regulation 3(3) of the 2014 regulations provides that the Commissioner shall perform all functions under art. 6 of the EU regulation which in turn refers to the best interests of the child ' with respect to all procedures provided for in this Regulation'. It seems to me that this is a context in which ' all' must mean ' all' because otherwise the effective application of art. 6 will be impeded.

7 Mr. Conlan Smyth submits that the allocation of responsibility between national-decision makers is a matter of national law but that submission misunderstands the position. The issue is how the Minister has chosen to allocate responsibility given the terminology used in the 2014 regulations. Mr. Conlan Smyth submits that the art. 17 power could not have been conferred on anybody other than the Minister without primary legislation as it is an executive power and relies on the U. decision. Thus the logic of...