N.v.U v The Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 26 June 2019
• Neutral Citation: [2019] IECA 183
• Date: 26 June 2019
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2019] IECA 183

BETWEEN/

N. V. U.

AND

M. U., M. N. I.

AND

M. S. (MINORS SUING BY THEIR MOTHER AND NEXT FRIEND N. V. U.)

APPLICANTS/ APPELLANTS

- AND -

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IECA 183

Baker J.

Irvine J.

McGovern J.

Baker J.

Neutral Citation Number: [2019] IECA 183

Appeal No.: 2017/591

THE COURT OF APPEAL

Judicial review – Refugee status – Jurisdiction – Appellants seeking to appeal from two High Court judgments – Whether the trial judge erred in law

Facts: The appellants appealed to the Court of Appeal from two written judgments of O’Regan J delivered on 26 June 2017 ([2017] IEHC 490), and 24 October 2017 ([2017] IEHC 613), and order of 14 November 2017 in judicial review proceedings brought against a decision of the first respondent, the Refugee Appeals Tribunal (RAT), which had upheld the decision of the Office of the Refugee Appeals Commissioner (ORAC) to transfer the application for refugee status to the relevant authorities in the United Kingdom. The first written judgment dealt with the legal issue as to jurisdiction, and the second with the question whether RAT had an obligation to consider the rights of the appellants under article 8 of the European Convention on Human Rights (ECHR) or article 7 of the European Charter on Fundamental Rights (the Charter). The grounds of appeal as regards the first judgment were as follows: 1) the trial judge erred in law in concluding that the discretion referred to in article 17 of Regulation EU 604/2013 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 (Recast) (Dublin III) is vested solely in the second respondent, the Minister for Justice and Equality; 2) the trial judge erred in finding that there is no requirement on the Minister to publish, or wrongful failure by him in not publishing, any policy guidance or criteria in respect of the exercise of its discretionary powers under the Dublin III; 3) the trial judge erred in finding that the approach of the respondent had the effect that no effective remedy exists against a refusal to exercise discretion referred to in article 17(1) of Dublin III. The grounds of appeal as regards the second judgment were as follows: 4) the trial judge erred in failing to determine whether or not private and/or family rights under article 8 of the ECHR and/or article 7 of the Charter must be considered by RAT in the transfer process and further erred in substituting its decision for that of RAT; 5) the trial judge erred in finding that the “best interests of the children” under article 6 of Dublin III had been adequately considered by RAT. In particular, the appellant contested O’Regan J’s finding, at para. 28 of her second judgment, that the children’s “express fear that if returned to the UK the first named applicant’s husband would find them in circumstances where he works in a takeaway is sufficiently irrational and unsupported by any evidence whatsoever”. The respondents opposed the appeal in its entirety. They also cross-appealed the cost award in the High Court.

Held by Baker J that she would allow the appeal in respect of the first judgment (grounds of appeal No. 1, 2, and 3) and uphold the decision of the trial judge in her second judgment, save and insofar as she made a determination or observations regarding the place of ECHR/Charter rights in the Common European Asylum System (the Dublin System).

Baker J proposed to hear counsel regarding the issue of costs of the appeal and of the costs order made in the High Court.

Appeal allowed.

JUDGMENT of Ms. Justice Baker delivered on the 26th day of June 2019

1 This appeal concerns article 17 of Regulation EU 604/2013 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 (Recast) (‘Dublin III’) which vests in Member States the discretion to deal with an application for refugee status on humanitarian or compassionate grounds where Dublin III would otherwise have resulted in that application being transferred to another Member State.

2 The appeal is from two written judgments of O'Regan J. delivered on 26 June 2017, U. v. Refugee Appeals Tribunal [2017] IEHC 490, and 24 October 2017, U. v. Refugee Appeals Tribunal [2017] IEHC 613 (the names are not redacted in the original), and order of 14 November 2017 in judicial review proceedings brought against a decision of the Refugee Appeals Tribunal (‘RAT’) which had upheld the decision of the Office of the Refugee Appeals Commissioner (‘ORAC’) to transfer the application for refugee status to the relevant authorities in the United Kingdom.

3 The functions of ORAC and RAT are now performed respectively by the International Protection Office (‘IPO’) and the International Protection Appeals Tribunal (‘IPAT’).

Background

4 The first appellant, Ms N. V. U., a Pakistani national, was born in 1979. She is the mother of the second, third, and fourth appellants, all minors. She asserts that she had travelled to the United Kingdom on foot of a spousal visa granted on 10 January 2014. In June 2015, her visa having expired on 28 May 2015, she travelled from the United Kingdom to Ireland with her children. She claims that she was in flight from an abusive husband. On 5 June 2015 she made an application under the Refugee Act 1996 for a declaration of refugee status on behalf of herself and her three children to the Irish authorities. Her claim for refugee status was based on an asserted fear of persecution if she and her children were returned to Pakistan. She asserted that the correct forum for the determination of her application for refugee status was Ireland, as she was at risk of inhuman and degrading treatment in the United Kingdom if she was returned there for the purpose of the determination by the United Kingdom of her application.

5 On 9 July 2015, a request for information was sent to the United Kingdom authorities under article 34 of Dublin III and on 20 December 2015, the Home Office advised ORAC that fingerprints and details of the appellants matched their records. By correspondence dated 28 January 2016, the United Kingdom authorities agreed to accept the transfer of the appellants” applications for refugee status pursuant to article 12(4) of Dublin III.

6 ORAC came to a decision that the application for refugee status should, in the light of article 12(4) of Dublin III, properly be examined by the United Kingdom authorities and on 29 April 2016, informed the appellants of its decision by ‘Notice of Decision to Transfer’.

7 The appellants appealed ORAC's decision to RAT by notice of appeal dated 24 May 2016. It is the decision on that appeal that fell for consideration by O'Regan J.

The decision of RAT

8 In its decision of 24 January 2017 (the ‘RAT Decision’), RAT dismissed the appeal and affirmed the transfer decision of ORAC.

9 The decision of RAT was the subject of an application for judicial review heard by O'Regan J. and the central legal question in the judicial review and which formed the basis of her first decision was the nature of the jurisdiction to be exercised by RAT under Dublin III.

10 The appellants had argued at first instance and on appeal that the discretion provided by article 17 of Dublin III should have been exercised by RAT so as to enable the application for refugee status to be determined in Ireland. RAT determined that it had no jurisdiction to exercise the discretion accorded to Member States by article 17 of Dublin III. It gave the following as a reason for its decision:

‘The Minister may or may not enact a regulation giving effect to the Tribunal exercising a discretionary power and setting out the basis on which it may be exercised, while Dublin III remains in force. But until such time as an organ of the State, executive/judicial/legislative sets out clearly that the Tribunal has jurisdiction to exercise discretionary power, this Tribunal declines to do so. Clearly, this Tribunal cannot act ultra vires’ (para 5.6).

11 RAT went on and stated that:

‘[i]t will be a matter for the Commissioner [ORAC]/Minister to address the medical concerns when putting the transfer into effect, unless in interim, Ireland as the Member State, exercises article 17 in an appropriate manner’ (para. 5.10).

The decisions in the High Court

12 The appellants sought judicial review by way of certiorari of the RAT Decision and various declaratory and injunctive reliefs on the grounds that RAT was wrong in law that it did not have discretion under article 17 of Dublin III to refuse to transfer. The appellants also sought to quash the RAT Decision on the grounds that RAT failed to adequately consider the appellants” rights to family life and private life under article 8 of the European Convention of Human Rights (‘ECHR’) or under article 7 of the European Charter on Fundamental Rights (‘the Charter’).

13 The matter was heard by way of telescoped hearing by O'Regan J. who refused the reliefs sought for the reasons stated in two written judgments, the first of which dealt with the legal issue as to jurisdiction, and the second, delivered some months later, with the question whether RAT had an obligation to consider the rights of the appellants under article 8 of the ECHR or article 7 of the Charter.

The judgments

14 In her first judgment, O'Regan J. dealt with the interpretation of article 17 of Dublin III. She came to the conclusion stated at paras. 33 and 34 that:

‘The sovereign discretion referred to in Article 17 of Dublin III has not been vested in [ORAC] and remains with the Minister for Justice/the Oireachtas’

...