P.F v International Protection Officer

• Jurisdiction: Ireland
• Judge: Whelan J.,Faherty J.,Murray J.
• Judgment Date: 18 December 2020
• Neutral Citation: [2020] IECA 357
• Date: 18 December 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/498 Court of Appeal Record No. 2019/499 High Court Record No. 2017/918JR

Between:

P.F.

Applicant/Appellant

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

Between:

P.F.

Applicant/Appellant

and

The International Protection Officer, International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2020] IECA 357

Whelan J.

Faherty J.

Murray J.

Court of Appeal Record No. 2019/498

High Court Record No. 2016/968JR

Court of Appeal Record No. 2019/499

High Court Record No. 2017/918JR

THE COURT OF APPEAL

Judicial review – Article 17(1) of the Dublin III Regulation – Discretion – Appellant seeking judicial review – Whether the trial judge erred in law in his interpretation of Article 17(1) of the Dublin III Regulation

Facts: The appellant appealed to the Court of Appeal from the orders of Keane J of 16 October 2019 refusing the appellant’s application for judicial review in proceedings bearing High Court record number 2017/918 JR (the 2017 proceedings) and striking out the proceedings bearing High Court record number 2016/968 JR (the 2016 proceedings) on the grounds that they were rendered moot by the refusal of the relief sought in the 2017 proceedings. The 2016 proceedings concerned a decision of the International Protection Appeals Tribunal to affirm a recommendation that the appellant not be declared eligible for subsidiary protection. The 2017 proceedings sought judicial review of the decision of the International Protection Office concerning 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 (recast) (the Dublin III Regulation). In her notice of appeal in the 2017 proceedings, the appellant contended that the trial judge erred in law in his interpretation of Article 17(1) of the Dublin III Regulation insofar as he found that, on a correct interpretation of Article 17, the exercise of the discretion under Article 17 did not arise for consideration in the circumstances of this case where Article 29(2) was relevant. The notice of appeal indicated that the appellant was asking the court to make a reference to the Court of Justice of the EU (CJEU). In her notice of appeal in the 2016 proceedings, the appellant asserted that if she was successful in her appeal of the 2017 proceedings, the 2016 proceedings ought to be remitted back to the High Court.

Held by the Court that the sovereign discretion clause of Article 17(1) applies as a derogation to the responsibility criteria mandated by Article 3(1); it does not apply as a derogation from Article 29(2). The Court noted that it had been determined (by dint of the mandatory requirements of Article 29(2), described by the CJEU as “automatic”) that the UK was the Member State responsible for the appellant. The Court held that in light of the nature of the illegality alleged against the State in these proceedings (the failure to exercise a discretion which the appellant said the State enjoys under Article 17), the impact for the appellant if that discretion was not exercised (and exercised in her favour) and the cumulative effect of the conduct of the appellant as it appeared from the evidence (which disclosed a significant abuse by her and disregard of the immigration laws of both the State and of the UK) this was a case in which the Court would, were it necessary to do so, exercise its discretion against granting the relief claimed.

The Court held that the issue of a reference to the CJEU in the terms suggested by counsel for the appellant did not arise for consideration.

Appeal refused.

Judgment of the Court delivered on the 18th day of December 2020

Introduction

1 These are appeals from the orders of Keane J. of 16 October 2019 refusing the appellant's application for judicial review in proceedings bearing High Court record number 2017/918 JR (“the 2017 proceedings”) and striking out the proceedings bearing High Court record number 2016/968 JR (“the 2016 proceedings”) on the grounds that they were rendered moot by the refusal of the relief sought in the 2017 proceedings.

2 The 2016 proceedings concerned a decision of the of the Refugee Appeals Tribunal (“RAT”, now, pursuant to s. 71(5) of the International Protection Act 2015, the International Protection Appeals Tribunal) to affirm a recommendation that the appellant not be declared eligible for subsidiary protection. The 2017 proceedings sought judicial review of the decision of the International Protection Office (“the IPO”) concerning 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 (recast) (hereinafter “the Dublin III Regulation”). Essentially, the impugned decision of the IPO denied that the State enjoys a discretion under Article 17(1) of the Dublin III Regulation to reassume responsibility for the examination of the international protection application of the appellant following a transfer of responsibility to the UK pursuant to Article 29(2) of the Regulation.

Background

3 The appellant is a national of Zimbabwe who applied for asylum in Ireland on 10 May 2011. Following a negative recommendation of the Office of the Refugee Applications Commissioner (“ORAC”) as subsequently affirmed on appeal, the Minister issued a decision to refuse a declaration of refugee status to the appellant on 20 June 2012. ORAC is the office formerly responsible for such applications.

4 The appellant subsequently applied for subsidiary protection on 11 July 2012. On 7 July 2015 it was recommended that the appellant not be declared eligible for subsidiary protection. Following an oral hearing on 3 May 2016, this recommendation was affirmed on appeal on 2 November 2016 by the decision of RAT. It was this decision of 2 November 2016 which formed the basis of the appellant's application for judicial review in the 2016 proceedings.

5 On 18 June 2016 the appellant was encountered and detained by Hampshire police in the UK. In correspondence from the Home Office to the appellant and exhibited in the affidavit of Siúna Bartels of 23 November 2017, it is noted that the appellant stated that she arrived in Southampton in February 2016. In a letter dated 29 November 2016, exhibited in the affidavit of Siúna Bartels of 15 December 2016, the Home Office noted that the appellant had claimed that she had a sister who resided in Southampton. In both sets of correspondence it was noted that the appellant had previously attempted to fly to Southampton via Belfast in May 2014.

6 In her affidavit of 18 January 2018, sworn in the 2016 proceedings, the appellant averred that she had travelled to the UK. She does not in that affidavit state exactly when she travelled to the UK; averring that following her appeal hearing (which took place in May 2016) and prior to receipt of the impugned decision she was arrested following an attempt to enter the UK for the purposes of a visit. She says that she travelled in order to visit her long-term partner who resides in Perthshire, Scotland. She also averred that her partner moved to London in April 2014. Further, it was stated at para. 4 of the amended Statement of Grounds in the 2017 proceedings, dated 16 February 2018, that the appellant travelled to the UK in May 2016 to visit her partner.

7 On 22 June 2016 the UK requested that Ireland take back the appellant pursuant to Article 18(1)(b) of the Dublin III Regulation. In this so-called “Take Back” request, exhibited in the affidavit of Sean Dooley of 8 February 2018, it is noted that the appellant gave the name of her partner in Scotland as P.M.N.

8 On 5 August 2016 ORAC acceded to the “Take Back” request following the receipt of further information on 19 July 2016. In the information received from the Home Office on 19 July 2016, it was noted that the appellant “ has no children and no known relationship in the UK” and had stated that she was “ not with anyone”. It was also noted that, after searching every database available to the Home Office, no records were found for her partner, P.M.N.

9 When the appellant's solicitors became aware that Ireland had acceded to the UK's “Take Back” request, they wrote to the Home Office on 5 and 9 December 2016 enquiring where the appellant should present herself so that she could be transferred to Ireland. The appellant's solicitors also wrote to the Irish Naturalisation and Immigration Service (“INIS”) on 9 December 2016 seeking confirmation of their efforts and/or role in facilitating the appellant's transfer back to Ireland. In a letter dated 6 January 2017, INIS confirmed that there was ongoing liaison between the two jurisdictions but that it was “ essentially a matter for the UK's Third Country unit as to when that transfer might be effected.” The appellant's solicitors wrote separately to INIS and the Home Office again on 7 February 2017, seeking confirmation that arrangements had been made to transfer the appellant to Ireland together with details of same.

10 Since the transfer of the appellant did not take place by 5 February 2017, responsibility for the appellant's international protection application transferred to the UK pursuant to Article 29(2) of the Dublin III Regulation. This transfer of responsibility was confirmed by the IPO in a letter to the Home Office dated 8 February 2017. The IPO further confirmed by letter of 14 February 2017 that Ireland would not accept a voluntary transfer of the appellant as the UK was now the Member State responsible...