NVU -v- The Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 24 July 2020
• Neutral Citation: [2020] IESC 46
• Date: 24 July 2020
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2019:000193 Court of Appeal record number 2017/591 [2019] IECA 183 High Court record number 2017/000 [2017] IEHC 000

Between

NVU, MU, MNI, MS (both minors proceeding by their next friend NVU)

Respondents/Applicants

- and -

The Refugee Appeals Tribunal, the Minister for Justice and Equality, Ireland

and

the Attorney General

Appellants/Respondents

[2020] IESC 46

Clarke C.J.

O'Donnell J.

MacMenamin J.

Charleton J.

O'Malley J.

Supreme Court appeal number: S:AP:IE:2019:000193

[2020] IESC 046

Court of Appeal record number 2017/591

[2019] IECA 183

High Court record number 2017/000

[2017] IEHC 000

An Chúirt Uachtarach

The Supreme Court

Immigration and asylum – Judicial review – European Union (Dublin System) Regulations 2014 – Respondents seeking asylum – Whether the appellant has the power under the European Union (Dublin System) Regulations 2014 to exercise a discretion in favour of considering the substantive application for refugee status

Facts: The respondents are a family of a mother and three children from Pakistan. They came to Great Britain on a visiting visa but on its expiry, on 28 May 2015, they came to Ireland, arriving it was claimed on 5 June 2015, and sought asylum on the basis of the alleged brutality of the father of the family. This claim was not considered in Ireland because of the prior visa issued to the family in another European country. It was proposed to transfer the asylum application to Great Britain. The family appealed to the first appellant, the Refugee Applications Tribunal, and asserted that the tribunal had the power under the European Union (Dublin System) Regulations 2014 to exercise a discretion in favour of considering the substantive application for refugee status. By a decision of 24 January 2017, the tribunal ruled that this was not so. The family issued judicial review proceedings on 8 May 2017 claiming that the power of the second appellant, the Minister for Justice and Equality, to exercise discretionary functions had been delegated to the decision-making bodies on refugee status and claiming violations of such a transfer would be a breach of human rights. In reply, the State contended that only the Minister has the power to exercise any discretion whereby that transfer might not take place where that is based on humanitarian or family grounds. The High Court decided, in two written judgments of O’Regan J delivered on 26 June 2017 and 24 October 2017, to uphold the decision of the tribunal that there was no discretion vested in anyone apart from the Minister to decline to transfer the family to Great Britain. The Court of Appeal, in a judgment of Baker J of 26 June 2019, reversed the High Court and decided that the power to apply discretionary humanitarian considerations not to transfer vested in the refugee assessment bodies and that the Minister had no primary or residual power in that regard. By determination of the Supreme Court of 26 March 2020, leave was given to appeal that decision.

Held by Charleton J that examples of discretionary powers of such a wide and unfettered nature vested in an administrative or quasi-judicial body are difficult to come by, if they exist at all; furthermore, the nature of the article 17 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 (Dublin III Regulation) power is not simply limited to the best interests of children or the reunification of family units, but extends beyond that into the exercise of discretion based on humanity or compassion or whereby the State may embrace an obligation which in international and European law does not exist. Charleton J held that there is no sign of any such delegation or of any basis on which that discretion could ever be exercised by anyone other than the Minister. Charleton J held that, of their nature, administrative bodies exist to make decisions based on fact and quasi-judicial bodies are there to assess facts and to issue rulings within rigid boundaries of the powers so enjoyed through the setting of jurisdiction pursuant to statue; that does not embrace this discretion.

Appeal allowed.

Judgment of Mr Justice Peter Charleton delivered on Friday 24 ^th of July 2020

1 Where a person claiming to be a refugee from persecution in their country of origin seeks protection in Ireland, the normal rule is that the claim be processed here. Where, however, the person has previously made an application for refugee status within the European Union, or has travelled on a visa to another EU country, European law generally requires that they be transferred to that other country for their claim to be there considered. To that there is an exception made in respect of countries overwhelmed by migration, which is not relevant here, and another exception whereby the country where the application is made has a general discretion to consider it, including on humanitarian grounds and including including family reunification, but not in any way so limited, notwithstanding the general rule. That exception is set out 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, commonly referred to at the Dublin III Regulation. What is at issue on this appeal is whether the discretion was, or could legally have been, devolved by the Minister for Justice and Equality onto the examining and appeal bodies for refugee applications under the European Union (Dublin System) Regulations 2014, SI 525 of 2014, or retained by the Minister.

Background

2 The respondents are a family of a mother and three children from Pakistan. They had originally come to Great Britain on a visiting visa but on its expiry, on 28 May 2015, came to Ireland, arriving it is claimed on 5 June 2015, and sought asylum on the basis of the alleged brutality of the father of the family, understood to also be in Great Britain but to be estranged from them. It is claimed that he was involved in law-enforcement as were many within his family and that consequently complaint to the authorities in Pakistan would be futile. This claim was not considered here because of the prior visa issued to the family in another European country. The visa came to light on 9 July 2015 when the Home Office indicated that the mother's fingerprints matched their records in respect of the visa. This happened in the ordinary way on the examination by the Refugee Applications Commissioner of the claim, since checks are routinely made as to whether those seeking asylum sought that status elsewhere or entered the European Union on a visa. No issue was taken by the family with the residence documents on the visa. The Office of the Refugee Applications Commissioner wrote to the family on 29 April 2016 stating that it had been “decided that the above applications for international protection should properly be examined by the United Kingdom, in line with the provisions of Regulation (EU) No. 604/2013 (Dublin III) Regulation).” No issue as to the Dublin III Regulation had been raised before the commissioner. It was thus proposed to transfer the asylum application to Great Britain. The family appealed to the Refugee Applications Tribunal and asserted that the tribunal had the power under the European Union (Dublin System) Regulations 2014 to exercise a discretion in favour of considering the substantive application for refugee status. By a decision of 24 January 2017, the tribunal ruled that this was not so:

The above issues may or may not be resolved by the High Court (and/or Court of Appeal or Supreme Court) while Dublin III is in force. 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.

3 The family issued judicial review proceedings on 8 May 2017 claiming that the power of the Minister to exercise discretionary functions had been delegated to the decision-making bodies on refugee status and claiming violations of such a transfer would be a breach of human rights. In reply, the State contended that only the Minister has the power to exercise any discretion whereby that transfer might not take place where that is based on humanitarian or family grounds. The family argued that the power has been vested by the State by the relevant statutory instrument in the general asylum decision system. Considerations of family rights are also argued by them to arise. While on this appeal the Minister announced that the application of the family would be considered in the exercise of the discretion in article 17, the issue remains important as to who has the power to decide that an application should be considered in Ireland notwithstanding a visa issued elsewhere in the EU or an application having been previously made in such a country for refugee status. At least 250 other cases have raised the same issue.

4 The High Court decided, in two written judgments of O'Regan J delivered on 26 June 2017, [2017] IEHC490, and 24 October 2017, [2017] IEHC 613, to uphold the decision of the tribunal that there was no discretion vested in anyone apart from the Minister to decline to transfer the family to Great Britain. The argument was made and rejected that the refugee assessment bodies had no power to transfer as they had not considered the humanitarian function in article 17. While the functions of these bodies are now, under the International Protection Act 2015,...