Tao v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 08 December 2020
• Neutral Citation: [2020] IEHC 648
• Docket Number: RECORD NO. 2020/741/JR
• Court: High Court
• Date: 08 December 2020

BETWEEN:

TAO AND JO, BO, GO AND PO (MINORS SUING BY THEIR MOTHER AND NEXT FRIEND, TAO)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 648

Tara Burns

RECORD NO. 2020/741/JR

HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms Justice Tara Burns delivered on 8th day of December 2020.

General

1 The First Applicant is a national of Nigeria. The Second, Third and Fourth Applicants are her children. The First Applicant, together with the Second and Third Applicants, applied to the International Protection Office (“hereinafter referred to “the IPO”) for international protection on 21 April 2017. The Applicant asserted that they had travelled from Nigeria on 14 April 2017 and arrived in the United Kingdom on the 16 April 2017. She stated that she did not claim international protection in the United Kingdom.

2 On the 25 April 2017, the IPO issued a request for information to the United Kingdom under Article 34 of EU Regulation 604/2013 (hereinafter referred to as “the Dublin III Regulation”).

3 The First Applicant submitted an International Protection Questionnaire on the 26 May 2017 in which she stated that Ireland was her primary destination when she left Nigeria, and she had not sought protection from any other country.

4 The United Kingdom responded to the Article 34 request on 17 February 2018, disclosing that the First Applicant had been issued with three visitor visas, the last of which was issued on 28 February 2017, valid from 18 February to 18 August 2017. On 27 March 2018, the IPO made a request to the United Kingdom to take charge of the protection claims under Articles 12(2) and 34(5) of the Dublin III Regulation on the grounds that the First Applicant had been issued with a valid visa for the United Kingdom.

5 On 18 April 2018, the First Applicant presented for an interview under Article 5 of the Dublin III Regulation. On that date, the Fourth Applicant, who had been born in June, was registered as an international protection applicant at the request of the IPO.

6 On 2 May 2018, the United Kingdom accepted the transfer of all of the Applicants under Article 12(2) of the Dublin III Regulation. On 11 May 2018, the IPO informed the First Applicant that the United Kingdom had accepted responsibility under Article 12(2) of the Dublin III Regulation and invited any further submissions they wished to make. The Applicants responded by requesting the IPO to exercise discretion under Article 17 of the Dublin III Regulation.

7 On 11 July 2018, the Applicants were issued with a Transfer Decision. On 16 July 2018, the Applicants appealed the Transfer Decision to the International Protection Appeals Tribunal (hereinafter referred to as “the IPAT”). The Applicants submitted that the IPO had erred in designating their case as proper for transfer under Article 12(2) and that the IPO had failed to consider their rights under Article 6 of the Dublin III Regulation and/or Article 7 of the European Charter of Fundamental Rights. The Applicants requested IPAT to exercise discretion under Article 17 to retain their applications for international protection within the State.

8 On 15 September 2020, the Applicants, by letter, requested the First Respondent to (i) cancel the decision to transfer the Applicants to the United Kingdom with immediate effect; (ii) alternatively, provide an immediate undertaking not to transfer the Applicants pending a determination of their application for Article 17 relief; (iii) grant the Applicants discretionary relief under Article 17 of the Dublin III Regulation. The First Respondent replied on 23 September 2020 noting that the Applicants' appeal was pending before IPAT.

9 On 5 October 2020, the Applicants submitted Supplemental Grounds of Appeal withdrawing the request to IPAT for Article 17 relief in light of NVU v. The Refugee Appeals Tribunal & Ors [2020] IESC 46. However, they submitted that the Transfer Decision be set aside under Article 3(2) of the Dublin Regulation.

10 A Statement of Grounds in these proceedings was filed on 15 October 2020. This was at a time when a decision from IPAT remained outstanding. An application seeking leave to apply by way of Judicial Review was moved before this Court on 19 October 2020. The Court adjourned the application so that the Respondents could be put on notice of the application. On foot of a request by the Respondents, the matter was set down for a telescoped hearing on 27 November. The Applicants were permitted to amend their Statement of Grounds to seek different reliefs. By the time of the telescoped hearing date (27 November), the First Respondent had not considered the Article 17 request. As the hearing did not conclude on that date, the matter was adjourned to 2nd December. At the resumed hearing date, it was indicated on behalf of the First Respondent that she would determine the Article 17 application by 16 December 2020.

11 On 9 November 2020, IPAT affirmed the decision of the IPO which was notified to the Applicants on 20 November 2020.

Reliefs Sought

12 The Applicants seek the following reliefs by way of Judicial Review at paragraph (d) of the Amended Statement of Grounds:-

1. An Order of Mandamus compelling the First Respondent to make a determination in respect of the Applicants' request for discretionary relief under Article 17 of the Dublin III Regulation.

2. A Declaration that the uncertainty surrounding the determination of issues under Article 17 and the failure to make an Article 17 decision or to indicate when same shall issue is in breach of the Applicants' rights to fair procedures and effective remedies in Irish and EU law.

3. A Declaration that the imminent cessation of the application of EU law and in particular the Dublin III Regulation in the United Kingdom deprives the implementation of any transfer decision of lawfulness.

13 In light of the indication by the First Respondent that she will determine the Article 17 application by 16 December, the reliefs sought at paragraph (d)1 and (d)2 of the Amended Statement of Grounds no longer arise to be considered by this Court. Significant argument took place at the hearing regarding when the Article 17 application was made by the Applicants. In light of the indication by the First Respondent that she will now determine this issue by 16 December, it appears to me that the significance of this argument relates to a cost issue rather than the substantive hearing....