T.M. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 469
• Date: 29 July 2016
• Court: High Court
• Docket Number: [2015 No. 408 J.R.] [2015 No. 433 J.R.]

[2016] IEHC 469

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 408 J.R.]

[2015 No. 433 J.R.]

BETWEEN

T.M.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL,

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

AND

REFUGEE APPLICATIONS COMMISSIONER

NOTICE PARTY

AND

BETWEEN

B.S.

AND

R.S.

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

AND

REFUGEE APPLICATIONS COMMISSIONER

NOTICE PARTY

Asylum, Immigration & Nationality – Art. 34 of Regulation (EU) No. 604/2013 – Challenge to transfer the asylum seeker to the jurisdiction of non-EU country – Rights of non-nationals

Facts: The applicants, by way of two separate judicial review proceedings, sought orders for quashing the decision of the first named respondent affirming the decision of the notice party to transfer the applicants in each case to the state from where they arrived in Ireland, which in the present case was the U.K. The applicants in each case contended that there was breach of art. 34 of the Regulation (EU) No. 604/2013 by the first named respondent as the impugned transfer could have been effected within prescribed time limit. The applicants in each case argued that there was a breach of art. 34 as the decision-maker did not specify the grounds under which the request for transfer had been made.

Mr. Justice Richard Humphreys dismissed the applications filed by the applicants in each case. The Court held that there was no breach of art.34 of the said reg. of 604/2013 as the purpose of the said reg. was to guide the member states to voluntarily take back an asylum seeker even after expiry of the prescribed time-limit. The Court observed that the procedures mentioned under the said reg. of 2013 were for the member states for showing mutual cooperation and not to protect the rights of the asylum seeker. The Court held that the applicants were entitled only to challenge the failure of compliance of criteria for transfer mentioned under the said reg. and other provisions of the regulations were address to solely to the member states. The Court, in agreement with the dicta of Federal Administrative Court of Germany in 1 C 32.14 BVerwGE I, held that failure of a member state to make a take-back request within the prescribed three-month time limit under the said reg. 604/2016 would not give any subjective rights to an asylum seeker.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

Facts in relation to Mr. M.

1 Mr. M. arrived in the State through the U.K. on 10th December, 2014, and claimed asylum the following day. The Refugee Appeals Tribunal subsequently found that he gave ‘ completely untrue’ answers during the course of his asylum claim.

2 On 18th December, 2014 the State sent a request for information to the U.K. under art. 34 of Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26th 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).

3 The U.K. replied to this request for information on 23rd January, 2015. On 10th March, 2015, the State sent a request to the U.K. to take charge of the asylum claim of Mr. M. pursuant to the regulation.

4 On 7th April, 2015, the U.K. replied agreeing to take charge of Mr. M.

5 On 28th April, 2015, despite being in the State for only four months, Mr. M. went through a ceremony of marriage with a Latvian woman in the State. How it was possible to do this given the statutory requirement for three months' notice of marriage has not been explained.

6 Following an interview on 21st March, 2015, the Refugee Applications Commissioner decided on 19th May, 2015 to transfer the applicant to the U.K. He appealed to the tribunal on 8th June, 2015.

7 On 30th June, 2015, the tribunal decided to uphold the decision of the Commissioner to transfer Mr. M.

8 Leave to seek judicial review of that decision was granted on 13th July, 2015, together with an interim injunction.

9 On 22nd July, 2015, Mr. M. applied for permission to remain in the State on the basis of his marriage to an EU national.

10 On 1st October, 2015 the applicant was granted permission to remain in the State pending the determination of his application for a right of residence based on his marriage.

11 On 29th October, 2015, the State having originally applied to set aside the injunction, did not pursue this application and the injunction restraining Mr. M.'s transfer was permitted to continue pending the determination of this application.

Facts in relation to Mr. and Mrs. S.

12 In December, 2014, Mr. and Mrs. S. came to the State through the U.K. in possession of false U.K. visas. They claimed asylum here on 16th December, 2014.

13 A request for information under art. 34 of the Dublin III regulation was sent on 15th January, 2015. Mr. and Mrs. S admitted that they had travelled through the U.K. but failed to acknowledge having been in possession of a U.K. visa.

14 The U.K. replied to the art. 34 request on 12th February, 2015. This gave rise to a request by the State to the U.K. to take charge of the asylum application on 16th March, 2015. The U.K. replied agreeing to do so on 13th April, 2015.

15 On 19th May, 2015, the commissioner decided to transfer Mr. and Mrs. S. to the U.K. They appealed to the Refugee Appeals Tribunal on 8th June, 2015. The tribunal upheld the Commissioner's decision on 14th July, 2015.

16 On 27th July, 2015, leave to seek judicial review of that decision was granted together with an injunction restraining the transfer of the applicants before 19th October, 2015.

17 On 21st December, 2015, the respondents agreed to continue the injunctive relief until the determination of the proceedings.

Are the transfer decisions invalid because the information request failed to state the grounds on which it was based contrary to art. 34 of the Dublin III regulation?

18 Ms. Sunniva McDonagh S.C. (with Mr. James Buckley B.L.), in a very able argument for the applicants submitted that the transfer decisions were invalid because in each case the request for information which preceded them was made without stating the ‘ grounds’ on which it was based as required by art. 34(4) of the regulation.

19 She relies on art. 27(1) of the regulation which guarantees an ‘ effective remedy…against a transfer decision’.

20 I will take the opinions of the Advocate General in Case C-155/15, Karim v. Migrationsverket (17th March, 2016) and Case C-63/15, Ghezelbash v. Staatssecretaris van Veiligheid en Justitie (Netherlands) (17th March, 2016) as a starting point. Those opinions state that the remedy must be such as to ‘ verify whether the criteria in chapter III have been correctly applied in [the applicant's] case’ (para. 91). Chapter III of the regulation covers arts. 7 to 15. The Court of Justice has recently upheld this approach in both cases in judgments, both delivered on 7th June, 2016 (see paras. 22 and 23 of Karim and paras. 30 to 61 of Ghezelbash).

21 The fact that the Advocate General has specifically identified arts. 7 to 15 as being subject to review strongly suggests that other articles of the regulation are not properly matters for review at the suit of an individual aggrieved applicant. For example, it is clear that a decision of another state to accept a transfer is not a transfer decision and is not subject to review under reg. 27(1) (see Karim, opinion of the Advocate General at para. 42).

22 In its decision in Ghezelbash, the court said at para. 51 that ‘[i]t follows from the foregoing that the EU legislature did not confine itself, in Regulation No. 604/2013, to introducing organisational rules simply governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve asylum seekers in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process’. What the court is speaking of here is the correct application of ‘ the criteria for determining responsibility’. It is not acknowledging a right of action on the part of an asylum seeker in relation to all aspects of the Dublin regulation.

23 It would probably be helpful if I clarify one point about the ‘ effective remedy’ envisaged by art. 27 of the regulation. In T.A.J. v. Refugee Appeals Tribunal (Unreported, Court of Appeal, ex tempore, 8th December, 2015), the Court of Appeal proceeded on the premise, adopted for the sake of argument, that judicial review was not an effective remedy as envisaged by the regulations. Indeed, Hogan J. in concurring ex tempore comments suggested that the question of what the effective remedy was could be the subject of a reference to the Court of Justice in another case. However, having had a perhaps more leisurely opportunity to consider the matter than was open to the Court of Appeal in determining an interlocutory injunction ex tempore in the T.A.J. case, in circumstances where Ryan P. expressly said that the decision was not to be regarded as definitively determining such an issue, it seems to me that the position in fact is quite clear and there is no necessity for a reference to the Court of Justice. Judicial review is not the effective remedy against a transfer decision. Rather the commissioner's decision to transfer an applicant is subject to a full appeal on all questions of fact and law to the tribunal. That appeal to the tribunal...