RG v The International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Hyland
• Judgment Date: 19 December 2023
• Neutral Citation: [2023] IEHC 742
• Court: High Court
• Docket Number: Record No. 2023/1131HJR

Between

RG

Applicant

and

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

Respondents

[2023] IEHC 742

Record No. 2023/1131HJR

THE HIGH COURT

Transfer – Injunction – Dublin III Regulation – Applicant seeking an injunction restraining his transfer – Whether there would be an irrevocable prejudice to the respondents if the injunction was granted

Facts: The applicant, a Georgian man who sought international protection in Ireland, challenged a transfer decision under Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 (the Dublin III Regulation), whereby the first respondent, the International Protection Appeals Tribunal (IPAT), upheld a decision of the International Protection Office to transfer the applicant back to France. He had previously made an unsuccessful application for international/subsidiary protection in France. He applied to the High Court seeking an injunction restraining his transfer/a stay on the transfer decision, pending the determination of the judicial review proceedings he had brought challenging the IPAT decision. The Dublin III Regulation provides that if a person is not returned to the Member State who has agreed to accept responsibility for them within six months of the relevant date, then the returning Member State shall be responsible for the person and there is no obligation on the other Member State to take the person back. In this case, the relevant date was six months from the final decision of the IPAT, being either 19 or 20 February 2024. The respondents argued that, given that it was very unlikely that the substantive case would be heard and determined prior to 20 February, a grant of an injunction/stay would effectively determine the proceedings; this was because, once the six months had elapsed, France would no longer be responsible for the applicant and instead Ireland would be treated as assuming responsibility for the applicant under the terms of the Dublin III Regulation. It was in those circumstances that the respondents argued that the balance of justice meant that there must be a refusal of the injunctive relief. The applicant’s answer was that a stay imposed by the Court on the decision of the IPAT meant that there was no final decision of IPAT under the terms of Dublin III and therefore the six month period would not expire until the determination of the proceedings, thus altering the balance of justice arguments.

Held by Hyland J that any stay on the transfer decision imposed by the Court would not stop the six month time limit running from the date of the IPAT decision and that the imposition of a stay would therefore very likely prevent the respondents being able to exercise their entitlement to request France to take back the applicant. Hyland J held that this was because Articles 27 and 29 of the Dublin III Regulation set out a self-contained regime that provides both for an effective remedy and time limits within which a transfer must take place. Hyland J held that a person is entitled to appeal or review a first instance transfer decision and while that is taking place, the person can remain in the Member State seeking to transfer them, as the transfer decision is suspended; however, once a final decision is given by the body carrying out the second instance appeal/review, Article 29(1) explicitly provides that the six month time limit starts to run. Hyland J held that if a Member State chooses to provide for a third layer of decision making (in this case judicial review) nothing in the Regulation prevents it from doing so; equally, it can suspend the transfer decision afresh in the context of that review as a matter of domestic law. In Hyland J’s view, a Member State cannot interfere with the regime established by the Regulation, whereby the six month time limit runs from the final decision of the body entrusted with the second instance appeal/review; in Ireland, that body is the IPAT as identified in the European Union (Dublin System) Regulations 2018 (S.I. No. 62 of 2018). Hyland J held that any stay or injunction restraining the applicant from being transferred would not stop the six month time limit from running from the date of the IPAT decision.

Hyland J held that the balance of justice favoured a refusal of the application for an injunction and/or a stay on the decision to transfer the applicant.

Application refused.

JUDGMENT of Ms. Justice Hyland delivered 19 December 2023

Summary of Decision

1 This case concerns a challenge to a transfer decision under Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013, (commonly referred to as the Dublin III Regulation), whereby the International Protection Appeals Tribunal (the “IPAT”) upheld a decision of the International Protection Office (the “IPO”) to transfer a Georgian man who sought international protection in Ireland back to France. He had previously made an unsuccessful application for international/subsidiary protection in France. He now seeks an injunction restraining his transfer/a stay on the transfer decision, pending the determination of the judicial review proceedings he has brought challenging the IPAT decision. In order to carry out the requisite balance of justice exercise to decide whether I should grant an injunction or stay, I must first decide on the consequences under the Dublin III Regulation if an injunction/stay is granted.

2 Subject to some exceptions, the Dublin III Regulation provides that if a person is not returned to the Member State who has agreed to accept responsibility for them (in this case France) within six months of the relevant date, then the returning Member State (in this case Ireland) shall be responsible for the person and there is no obligation on the other Member State to take the person back. Here, the relevant date is six months from the final decision of the IPAT, being either 19 or 20 February 2024.

3 The respondents argue that, given that it is very unlikely that the substantive case will be heard and determined prior to 20 February, a grant of an injunction/stay will effectively determine these proceedings. This is because, once the six months has elapsed, France will no longer be responsible for the applicant and instead Ireland will be treated as assuming responsibility for the applicant under the terms of the Dublin III Regulation. That means the validity of the transfer decision is effectively irrelevant since, even if it is upheld, France will no longer be under any obligation to take back the applicant. It is in those circumstances that the respondents argue that the balance of justice means that there must be a refusal of the injunctive relief.

4 The applicant's answer is that a stay imposed by this Court on the decision of the IPAT means that there is no final decision of IPAT under the terms of Dublin III and therefore the six month period will not expire until the determination of these proceedings, thus altering the balance of justice arguments.

5 In summary, for the reasons set out below, I have concluded that any stay on the transfer decision imposed by this Court will not stop the six month time limit running from the date of the IPAT decision and that the imposition of a stay would therefore very likely prevent the respondents being able to exercise their entitlement to request France to take back the applicant.

6 That is because Articles 27 and 29 of the Dublin III Regulation set out a self-contained regime that provides both for an effective remedy and time limits within which a transfer must take place. A person is entitled to appeal or review a first instance transfer decision and while that is taking place, the person can remain in the Member State seeking to transfer them, as the transfer decision is suspended. However, once a final decision is given by the body carrying out the second instance appeal/review, Article 29(1) explicitly provides that the six month time limit starts to run. If a Member State choses to provide for a third layer of decision making (in this case judicial review) nothing in the Regulation prevents it from doing so. Equally, it can suspend the transfer decision afresh in the context of that review as a matter of domestic law. But in my view, a Member State cannot interfere with the regime established by the Regulation, whereby the six month time limit runs from the final decision of the body entrusted with the second instance appeal/review.

7 In Ireland, that body is the IPAT as identified in S.I. No. 62 of 2018 — European Union (Dublin System) Regulations 2018 (the “2018 Regulations”). Accordingly, any stay or injunction restraining the applicant from being transferred will not stop the six month time limit from running from the date of the IPAT decision.

Factual Background

8 This an application for an injunction restraining the third respondent including the Garda National Immigration Bureau (the “GNIB”) from taking any steps in relation to the removal of the applicant pending the determination of the within proceedings. In the written legal submissions lodged in support of the application, reference is made to a stay on the decision under challenge, being a decision of the IPAT. In fact, no stay was sought in the pleadings and the applicant simply sought an injunction restraining the Minister from deporting him. However, given that the question of the stay was argued between the parties, and given the urgency with which the matter was listed for hearing, I am prepared to treat the matter as one where both a stay and an injunction were sought.

9 On 20 September 2023 the IPAT affirmed the notice of decision to transfer the applicant to France made by the IPO (the “transfer decision”). The applicant had sought international protection in the State. The chronology of events is...