T.A.O., J.O., B.O, G.O and P.O. (Minors Suing by their Mother and Next Friend T.A.O.) v The Minister for Justice and Equality, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 03 November 2021
• Neutral Citation: [2021] IECA 293
• Docket Number: RECORD NUMBER 2021/007
• Year: 2021
• Court: Court of Appeal (Ireland)

Between

T.A.O., J.O., B.O, G.O and P.O. (Minors Suing by their Mother and Next Friend T.A.O.)

Applicants/Appellants

and

The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2021] IECA 293

Noonan J

Ní Raifeartaigh J.

Collins J

RECORD NUMBER 2021/007

THE COURT OF APPEAL

CIVIL

No further redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 3 November 2021

BACKGROUND

1 The Appellants appeal from the Order of the High Court (Ms Justice Burns) of 17 December 2020 (perfected on 19 December 2020) (“ the Order”) by which they were awarded one eighth of their costs of these proceedings. The Appellants say that they ought to have all of their costs. In the alternative, they say that they are entitled to a much higher proportion of those costs than the High Court Judge awarded.

2 The Order was made after a hearing on costs on 17 December 2020 and the Judge gave her reasons for it in an ex tempore ruling delivered immediately following that hearing. The costs hearing followed from a substantive judgment of the High Court given on 8 December 2020 ( [2020] IEHC 648).

3 I shall set out the facts as briefly as possible. A more detailed statement can be found in the High Court's judgment of 8 December 2020.

4 The Appellants arrived in Ireland in April 2017 and immediately applied to the International Protection Office (“ IPO”) for international protection in the State. The Appellants are from Nigeria and had travelled to Ireland via the UK. In the circumstances, a question arose as to which EU Member State – Ireland or the UK – was responsible for examining the applications, having regard to the provisions of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“ the Dublin III Regulation”). Ultimately, the UK agreed to accept responsibility for the applications and agreed to accept the transfer of the Appellants to the UK and in July 2018 the IPO made a formal transfer decision in respect of the Appellants (“ the Transfer Decision”).

5 In July 2018, the Appellants appealed the Transfer Decision to the International Protection Appeals Tribunal (“ IPAT”) pursuant to Regulation 6 of the European Union (Dublin System) Regulations 2018 ( SI No 62/2018) ( “the 2018 Regulations”). That appeal was ultimately determined against the Appellants, and IPAT affirmed the Transfer Order on 9 November 2020 (subsequent to the institution of these proceedings).

6 Article 17(1) of the Dublin III Regulation provides that each Member State may decide to examine an application for international protection lodged with it by a third-country national or stateless person “ even if such examination is not its responsibility under the criteria laid down in this Regulation.”

7 Neither the 2018 Regulations nor the Regulations that it replaced (principally the European Union (Dublin System) Regulations 2014 ( SI No 525/2014)) expressly addressed Article 17 or identified the person or body by whom the option or discretion granted or recognised by it was exercisable in the State. Prior to the decision of the Supreme Court in NVU v Refugee Appeals Tribunal and others [2020] IESC 46, there was significant uncertainty as to whether the Article 17 discretion was exercisable by the Minister for Justice and Equality (“ the Minister”) or by the bodies responsible for determining applications for international protection (originally the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, now the IPO and IPAT). As and from 2017, the position of the Minister for Justice and Equality has been that the Article 17 discretion is exclusively exercisable by the Minister (having previously maintained a contrary position). Differing views had also expressed by different judges in the High Court. In NVU, O'Regan J concluded that the Article 17 discretion vested in the Minister ( [2017] IEHC 490). However, some months later, in MA (a Minor) v International Protection Appeals Tribunal [2017] IEHC 677, in the context of making a reference to the CJEU pursuant to Article 267 TFEU, Humphreys J expressed a tentative view that the discretion was exercisable by the IPO and, in the event of an appeal, by IPAT. NVU then went on appeal to this Court and, in a judgment given by Baker J (Irvine and McGovern JJ agreeing) the Court held that the Article 17 discretion was exercisable by the “ determining body”, i.e. the IPO and IPAT: see [2019] IECA 183.

8 That decision was in turn reversed on appeal to the Supreme Court. The Supreme Court's decision was given on 24 July 2020. From that point onwards, it has been clear that the Article 17 discretion vests in the Minister exclusively.

9 While this issue was on its path to final resolution, a large number of cases in which the issue was raised were placed in a holding list in the High Court (the “ AZ Holding List”) which, we were told, ultimately included some 200 cases. By virtue of paragraph 8(2) of High Court Practice Direction 81, the execution of the transfer decision was stayed in those cases pending the outcome of NVU. This stay is referred to in the papers as the “ global injunction” and I shall use that nomenclature also.

10 On 15 September 2020 – presumably prompted by the Supreme Court's decision in NVU – the Appellants' solicitors wrote to the Minister making an application for “ discretionary relief under Article 17(1)”. At that point, the Appellants' appeal before IPAT was still pending. The letter asserted that, if transferred to the UK, the Appellants' rights under the European Convention on Human Rights (the “ECHR”) and Charter of Fundamental Rights of the European Convention (“ the Charter”) would not be guaranteed because (so it was said) “the ‘rule of law’ no longer pertains in the UK”. The letter went on to assert specifically that the Appellants would be at risk of detention in the UK and suggested more generally that there were “ systemic deficiencies” in the UK's international protection system. In that context, reference was made to the (UK) Internal Market Bill which, it was said, “ was widely viewed as a breach of international law.” Many of the points made in this letter repeated grounds which had already advanced by the Appellants before the IPO and IPAT (the Appellants had raised Article 17 before each body and asserted that they were vested with the discretion provided for by it). All of this led to a request to the Minister to cancel the Transfer Decision “ with immediate effect” or, in the alternative, to provide an undertaking that the Appellants would not be transferred pending the determination of the “ application for Art 17 relief”. Finally, the letter requested the Minister to grant “ discretionary relief under Art 17” so as to permit the Appellants to continue with their application for international protection in the State. The letter threatened proceedings to enjoin the transfer unless a satisfactory response was received by 30 September 2020.

11 In response, it was noted on behalf of the Minister that the Appellants' case was currently pending before IPAT.

12 On 5 October 2020 the Appellants withdrew their request for Article 17 relief from IPAT but at the same time made a detailed submission to the Tribunal asking it to set aside the Transfer Decision under Article 3(2) of the Dublin III Regulation.

13 The Minister's response did not satisfy the Appellants and on 19 October 2020 they applied ex parte for leave to issue these proceedings. The reliefs sought in the Statement of Grounds included a declaration that the transfer of international protection applicants to the UK would be in breach of Article 3(2) of the Dublin III Regulation (an issue which by then was also before IPAT) and certiorari of the Transfer Decision, as well as an order of mandamus to compel the Minister to determine the Article 17 request. In addition, an injunction restraining the removal of the Appellants was sought “ if required.” The grounds closely reflected the contents of the letter of 15 September 2020.

14 The Judge directed that the application for leave be heard on notice to the Respondents. Subsequently (on or about 16 November 2020), the Judge gave the Appellants permission to amend their Statement of Grounds. The Amended Statement of Grounds no longer sought the declaration regarding Article 3(2) or the order of certiorari but sought two new declarations, one to the effect that the “ uncertainty” surrounding Article 17 was in breach of the Appellants' right to fair procedures and effective remedies in Irish and EU law and the other to the effect that the “ imminent cessation” of the application of EU law (and particularly the Dublin III Regulation) in the UK “ deprive[d] the implementation of any transfer decision of lawfulness”. These new reliefs were supported by additional grounds which asserted ( inter alia) that the Appellants were entitled to an Article 17 decision prior to transfer and that the decision to transfer should be vitiated in light of the imminent withdrawal of the UK from the Common European Asylum System.

15 The Minister delivered a Statement of Opposition pleading to the Amended Statement of Grounds and opposing the granting of any of the reliefs sought by the Appellants.

16 The proceedings came on for hearing before Burns J on 27 November 2020, alongside a number of other similar applications (given the imminent end of the Brexit transition period on 31 December 2020, there were many challenges to transfers to the UK at that time). The hearing proceeded as a “ telescoped” or rolled-up hearing whereby the Court would determine whether leave should be granted and, if so, would proceed to determine the substantive proceedings without the necessity for any further hearing. At that stage, the High Court had, on the application of the Minister, lifted the global injunction but had...