RG v International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 20 September 2024
• Neutral Citation: [2024] IEHC 579
• Court: High Court
• Docket Number: Record No. 2023/1131JR

Between/

RG

Applicant

and

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

Respondents

[2024] IEHC 579

Record No. 2023/1131JR

AN ARD-CHÚIRT

THE HIGH COURT

REDACTED

(No. 2)

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 20 ^th day of September 2024

INTRODUCTION

Preliminary

1 In this application for judicial review, the applicant inter alia contends that the Minister for Justice (“the Minister”) failed to properly consider the change of circumstances, which, it is argued, occurred after the decision of the High Court 1 on 19 ^th December 2023 refusing an injunction following an initial take-back request dated 27 ^th September 2022 from the International Protection Office (“IPO”) 2 to the French authorities in accordance with

Regulation (EU) No. 604/2013 (“the Dublin III Regulation”) 3 and subsequent transfer decision or notification from the IPO dated 16 ^th February 2023 (confirmed on appeal by the International Protection Appeals Tribunal (“IPAT”) on 20 ^th September 2023) that he be transferred to France as his application for international protection remained pending there from 25 ^th March 2022

2 Whilst the applicant was in fact transferred from Ireland to France on 13 ^th February 2024, he argues that this could not have been lawfully implemented because of the alleged failure by the Irish authorities to meet the requirements to exchange with their French counterparts: (a) relevant information before a transfer was carried out (Article 31 of the Dublin III Regulation); and (b) health data before a transfer was carried out (Article 32 of the Dublin III Regulation).

3 The changed circumstances contended for, on behalf of the applicant, arose from a second medical report dated 30 ^th January 2024, which included, inter alia, the applicant's regression from not currently displaying severe suicidal ideation in the first medical report dated 16 ^th April 2023 to having developed suicidal ideation at the thought of being returned to France as per the second medical report dated 30 ^th January 2024.

4 In a pre-action letter dated 31 ^st January 2024, the applicant's solicitors inter alia raised these matters with the Irish authorities alleging there was no proof at that time that the Minister had complied with Articles 31 and 32 of the Dublin III Regulation and further arguing that “ in the absence of compliance with Articles 31 and 32, the Minister has the option to suspend the transfer and/or grant the applicant discretionary relief under [Article] 17 of the Dublin III Regulation”.

5 The Minister issued her Article 17(1) decision on 12 ^th February 2024 refusing the applicant's request that she exercise her discretion to determine his application for international protection in Ireland and stating inter alia that there were no exceptional circumstances which would merit not applying the Dublin III Regulation to his case and that his transfer to France would take place as soon as possible. The Minister's Article 17(1) decision was signed by Luke Dineen, Officer of the Minister, Dublin Unit, International Protection Office and the applicant further argues that Mr. Dineen lacked the authority to sign this decision on behalf of the Minister.

6 Eamonn Dornan BL appeared for the Applicant. Mark J. Dunne SC and Sarah-Jane Hillery BL appeared for the Respondents.

THE DUBLIN III REGULATION

7 The allocation of responsibility between the Member States of the European Union in relation to applications for international protection is governed by Regulation (EU) No.604/2013, which was given further effect by the European Union (Dublin System) Regulations 2018 in S.I. No.62/2018. Regulation (EU) No.604/2013 had previously repealed Regulation (EC) No.343/2003, which had in turn repealed the first Dublin Convention dated 15 ^th June 1990, providing the initial process for the designating the responsible State for processing asylum applications lodged in a member state of the (then) European Communities.

8 In T.T. (Transfer Decision) v IPAT & Ors [2024] IEHC 470, at paragraph 4, Simons J. observed (in the context of those proceedings) that the Dublin III Regulation addresses the contingency of an individual making a series of applications for international protection as follows: the Member State which rejected the first application may be obliged to “ take back” an individual who has since made a second application in another Member State or who is on the territory of another Member State without a residence document.

9 In A v Minister for Justice & Ors and B v IPAT [2024] IEHC 183, at paragraph 128, Phelan J. observed that the Dublin III Regulation established the criteria and mechanisms for determining which Member State was responsible for examining an asylum claim made in the EU and allowed Member States to send requests to other Member States to “ take charge of” or “ take back” asylum applications (subject to time limits) in order to effect timely access to asylum procedures and reduce double handling of asylum claims by different States.

10 In AHY v The Minister for Justice [2022] IEHC 198, Ferriter J., at paragraph 52 of his judgment, described Article 17 of the Dublin III Regulation as follows:

“ (52) Article 17 of the Dublin III Regulation provides that “[b]y way of derogation from Article 3(1)”, any Member State “may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation”. Provision to the same effect was made in Article 3(2) of Dublin II. While recital (17) refers to humanitarian and compassionate grounds “in particular”, article 17(1) is not so limited and is “intended to allow each member state to decide, in its absolute discretion, on the basis of political, humanitarian or practical considerations, to examine an asylum application even if it is not responsible under the criteria laid down” in Chapter III: Case C-661/17 MA v International Protection Appeals Tribunal [2019] 1 WLR 4975 (“ MA”)”.

11 Article 31 of the Dublin III Regulation provides for the exchange of relevant information before a transfer is carried out.

12 Article 32 of the Dublin III Regulation provides for the exchange of health data before a transfer is carried out.

13 Article 32(1) provides as follows:

“ For the sole purpose of the provision of medical care or treatment, in particular concerning disabled persons, elderly people, pregnant women, minors and persons who have been subject to torture, rape or other serious forms of psychological, physical and sexual violence, the transferring Member State shall, insofar as it is available to the competent authority in accordance with national law, transmit to the Member State responsible information on any special needs of the person to be transferred, which in specific cases may include information on that person's physical or mental health. That information shall be transferred in a common health certificate with the necessary documents attached. The Member State responsible shall ensure that those special needs are adequately addressed, including in particular any essential medical care that may be required.”

14 Article 32(2) provides as follows:

“ The transferring Member State shall only transmit the information referred to in paragraph 1 to the Member State responsible after having obtained the explicit consent of the applicant and/or of his or her legal representative or, if the applicant is physically or legally incapable of giving his or her consent, when such transmission is necessary to protect the vital interests of the Applicant or of another person. The lack of consent, including a refusal to consent, shall not constitute an obstacle to the transfer.”

15 Article 32(3) provides as follows:

“ The processing of personal health data referred to in paragraph 1 shall only be carried out by a health professional who is subject, under national law or rules established by national competent bodies, to the obligation of professional secrecy or by another person subject to an equivalent obligation of professional secrecy.”

16 Article 32(4) provides that the exchange of information under that Article shall only take place between the health professionals or other persons referred to in paragraph 3. The information exchanged shall only be used for the purposes as set out in paragraph 1 and should not be processed further.

17 Article 32(5) provides as follows:

“ The Commission shall by means of implementing acts, adopt uniform conditions and practical arrangements for exchanging the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure laid down in Article 44(2).”

18 Article 32(6) provides: “ The rules laid down in Article 34(8) to (12) shall apply to exchange of information pursuant to this Article.”

19 Article 34(8) of the Dublin III Regulation provides:

“ The Member State which forwards the information shall ensure that it is accurate and up-to-date. If it transpires that it has forwarded information which is inaccurate or which should not have been forwarded, the recipient Member States shall be informed thereof immediately. They shall be obliged to correct such information or to have it erased.”

20 Article 34(12) of the Dublin III Regulation provides:

“ Where the data are not processed automatically or are not contained, or intended to be entered, in a file, each Member State shall take out public measures to ensure compliance with this Article through effective checks.”

FACTUAL BACKGROUND

Chronology

21 As a central feature of the applicant's case is that there was a change of circumstances after the decision of this...