R.P. v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 31 May 2019 |
| Neutral Citation | [2019] IEHC 377 |
| Court | High Court |
| Docket Number | [2017 No. 1 JR] |
| Date | 31 May 2019 |
AND
[2019] IEHC 377
[2017 No. 1 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Statement of grounds – Amendment – Applicant seeking to amend his statement of grounds – Whether Regulation 18(3) of the European Union (Dublin System) Regulations 2014 is ultra vires the powers conferred by s. 3 of the European Communities Act 1972
Facts: The applicant moved to amend his statement of grounds in judicial review proceedings. The respondents, the Minister for Justice and Equality and the International Protection Appeals Tribunal, opposed that application. The decision under review was that of the Refugee Appeals Tribunal dated 14th December 2016 to refuse to accept the applicant’s appeal against the decision of the Refugee Applications Commissioner to transfer his refugee status application to another Member State, pursuant to the provisions of the European Union (Dublin System) Regulations 2014, then in force, transposing Regulation (EU) No 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) (the Dublin III Regulation). The amendment sought involved the insertion of a claim for one additional relief, a declaration that Regulation 18(3) of the 2014 Regulations is ultra vires the powers conferred on the respondent by s. 3 of the European Communities Act 1972, together with the necessary new grounds in support of that relief.
Held by the High Court (Keane J) that while the amendment sought would add a new and discrete limb to the applicant’s argument, it was not sure that it would be fair to describe it as a significant enlargement of the applicant’s case. Keane J held that it did appear to be based on a matter of pure law; whether Regulation 18(3) of the 2014 Regulations is ultra vires the powers conferred by s. 3 of the 1972 Act. Keane J held that, beyond public policy concerns, this was not a case in which the respondents claimed the amendment sought would give rise to significant prejudice.
Keane J held that, having applied the paramount test of the interests of justice, he should permit the amendment sought.
Amendment permitted.
The applicant moves to amend his statement of grounds in these judicial review proceedings. The respondents oppose that application.
The decision under review is that of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 14th December 2016 to refuse to accept the applicant's appeal against the decision of the Refugee Applications Commissioner (“the Commissioner”) to transfer his refugee status application to another Member State, pursuant to the provisions of the European Union (Dublin System) Regulations 2014 (“the 2014 Regulations”), then in force, transposing Regulation (EU) No 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) (“the Dublin III Regulation”).
On 3 January 2017, Haughton J granted the applicant leave to apply for an order of certiorari quashing the IPAT decision on the grounds set out in his statement of grounds of that date.
On 31 December 2016, three days before the application for leave was made, the administration and business of the Refugee Appeals Tribunal in connection with, amongst other matters, the Dublin System Regulations were transferred to the International Protections Appeals Tribunal, under s. 71(1) of the International Protection Act 2015. I have amended the title of the proceedings to reflect that fact.
The applicant is a male national of Pakistan, born in 1986, who presented himself to the immigration authorities in Dublin on 20 March 2015, having claimed to have arrived in the State from Liverpool via Belfast on that date.
The applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 26 March 2015 and completed an asylum application (“ASY-1”) form on that date. He completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (“ORAC”) on 6 April 2015.
An authorised officer of the Commissioner carried out a personal interview with the applicant on 25 September 2015, pursuant to Reg. 4 of the 2014 Regulations, transposing the requirements of Art. 5 of the Dublin III Regulation, presumably on the basis of his claim to have entered the United Kingdom on a student visa in 2010.
ORAC wrote to the applicant on 25 November 2015, as required by Reg. 5 of the 2014 Regulations, to inform him that the Commissioner had decided that the United Kingdom was the Member State responsible for dealing with his asylum claim under Art. 12(4) of the Dublin III Regulation for the following reasons:
“According to information received from the UK, you were, at the time of your application for asylum on 20/03/2015, in possession of a residence document which had expired less than two years previously. A request was made to the UK, based on the information available and in accordance with Article 12(4) of Regulation (EU) No. 604/2013, to take charge of your application for asylum. On 03/11/2015, the UK agreed to accept Ireland's request, in accordance with Article 12(4) of Regulation (EU) No. 604/2013.”
The letter went on to inform the applicant that he could appeal that decision to the Refugee Appeals Tribunal within 15 working days of the date of that notification, by completing an attached notice of appeal.
Nothing further occurred until, on 6 July 2016, the applicant's solicitors wrote to ORAC, enclosing his signed authority for them to act on his behalf, inquiring about when he could expect to receive a decision on the potential transfer of his asylum claim under the 2014 Regulations, and requesting a replacement for his identity card, which had expired.
ORAC replied on 8 July 2016, stating that a determination had been made on 25 November 2015, after which the applicant's file had been forwarded to the Irish Naturalisation and Immigration Service (“INIS”) to whom ORAC had forwarded the solicitor's correspondence. INIS wrote to the applicant's solicitors on 14 July 2016 stating that the applicant had been requested to attend at the Garda National Immigration Bureau (“GNIB”) on 12 January 2016 to facilitate arrangements for his transfer to the United Kingdom but had failed to do so, resulting in his classification as an absconder. The solicitors were requested to advise the applicant of his obligation to present at GNIB immediately.
The applicant's solicitors wrote to ORAC again on 22 August 2016, stating that the applicant had instructed them that he never received the notification of transfer decision and requesting that ORAC re-issue it and furnish them with a copy. ORAC furnished a copy under cover of a letter, dated 25 August 2016. INIS wrote to the applicant's solicitors on 29 August 2016, enclosing a copy of their letter to the applicant of 6 January 2016, requesting him to attend at GNIB on 12 January 2016 to facilitate his transfer to the UK.
The applicant's solicitors wrote to ORAC and INIS separately on 9 September 2016, asking ORAC whether the notification of transfer had been sent by registered post and, if so, whether it had been returned, before informing INIS of their client's intention to appeal the transfer decision and requesting an undertaking that he would not be deported until the anticipated appeal had been determined.
ORAC wrote to the applicant's solicitors on 13 September 2016, confirming that the notification of transfer had been sent to the applicant by registered post at the address he had provided and had not been returned.
On 28 September 2016, the applicant's solicitors wrote to the Refugee Appeals Tribunal, enclosing a notice of appeal. The letter acknowledged that the appeal was late; explained that the applicant's instructions were that he had never received the notification of transfer decision; submitted that a late appeal should be accepted for that reason; and, finally, requested confirmation within 7 days of the date of that letter that the appeal would be accepted.
The Refugee Appeals Tribunal wrote to the applicant's solicitors on 29 September 2016, stating:
“In order for us to consider whether your client's appeal will be accepted, an affidavit must be submitted to this office by your client explaining why the appeal is late. It will be decided at this (sic) stage whether the late appeal can be accepted or not.”
The applicant's solicitors responded on 11 October 2016, enclosing an affidavit of the applicant in which he averred, in material part:
“I say I have not ever received a letter from [ORAC] dated 25th November 2015. I say I was living at the address that this letter was addressed to but I did not receive same and I beg to refer to the attach bar coded item delivery record print out showing that this letter was signed for by someone named Klaudia.
I say I do not know of anybody by the name of Klaudia living at my address with me and I again confirm I never received the letter from ORAC dated 25th November 2015.”
The bar-coded item delivery record print out, exhibited by the applicant, also records that the letter was delivered at 9.24 a.m. on 26 November 2015. The applicant makes no comment on how it might have been possible for someone unknown to him to accept delivery of letter on his behalf at his address at that time on that date without his knowledge.
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M.U.A.(Pakistan) v The Refugee Appeals Tribunal
...2014 (S.I. No. 525 of 2014). Keane J then delivered judgment on that application, sub. nom. R.P. v. Minister for Justice and Equality [2019] IEHC 377 (Unreported, High Court, 31st May, 2019), allowing the amendments sought. Keane J then indicated that he was not retaining seisin of the case......