U. v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMs. Justice O'Regan
Judgment Date26 July 2017
Neutral Citation[2017] IEHC 490
Docket Number[2017 No.120 J.R.]
CourtHigh Court
Date26 July 2017
BETWEEN
U.
APPLICANTS
AND
REFUGEE APPEALS TRIBUNAL
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
IRELAND

AND

ATTORNEY GENERAL
RESPONDENTS

[2017] IEHC 490

O'Regan J.

[2017 No.120 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Regulation No. 604/2013 (Dublin III) – Ministerial discretion – Judicial review – Reg. 3(1) of Statutory Instrument No. 525 of 2014

Facts: The applicants sought an order for quashing the decision of the first named respondent who affirmed the recommendation of the Office of the Refugee Applications Commissioner (‘ORAC’) to transfer the applicants' application for asylum to another member state namely, the United Kingdom. The dispute between the parties was related to the authority that was vested with discretion under art. 17 of Dublin III Regulation. The applicants claimed that it was ORAC, and on appeal, the Refugee Appeals Tribunal (‘RAT’) could exercise the art. 17 discretion. The respondent asserted that only the second respondent (‘Minister’) was vested with such authority. The applicants stated that under reg. 3(1) of the Statutory Instrument No. 525 of 2014, ORAC was vested with the authority to determine functions of a member state. The respondents objected to the interpretation given by the applicants to the 2014 Instrument and stated that it was not constitutionally feasible.

Ms. Justice O'Regan refused to grant any relief to the applicants. The Court held that the discretion given under art.17 was a sovereign discretion given to each member state. The Court held that the Dublin III reg. did not impose any clear or unconditional obligation on the member states.

JUDGMENT of Ms. Justice O'Regan delivered on the 26th day of June, 2017
Issues
1

The applicants in the within proceedings seek to impugn the decision of the first named respondent of 24th January 2017 whereby the first named respondent, on appeal, confirmed the prior decision of ORAC, of 29th April 2016, to transfer the applicants application for asylum to another Member State, namely the U.K.

2

The proceedings involve an interpretation of Dublin III, being Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26th June 2013, and Statutory Instrument No. 525 of 2014 (European Union (Dublin System) Regulations 2014).

3

The issues arising might be conveniently divided into three brackets namely:

1. The provisions of Article 17 of Dublin III;

2. Private life or family life rights arising under Article 8 of the Charter of Human Rights and

3. The best interest of the children.

4

This judgment is confined to the Article 17 issues.

5

Following the initial Statement of Grounds the applicant has since amended the Statement of Grounds without further leave in that regard being afforded. This arose because in the statement of opposition on behalf of the respondents of 25th April 2017 the respondents argue that the discretion arising under Article 17 of Dublin III is in fact vested in the Minister for Justice, Equality and Law Reform as opposed to ORAC (or, currently, the International Protection Agency) which the applicants argue is an about turn on the part of the respondents which could not have been anticipated prior to the filing of the statement of opposition. The respondents in turn filed an amended statement of opposition of the 24th May 2017. For the purpose of disposing of the real issues between the parties all amendments were before the Court in or about the hearing of the matter.

Brief background
6

The applicants are nationals of Pakistan. The first named applicant is the mother of the three infant children mentioned in the title and married their father in 2003. The father of the three children arrived in the United Kingdom in or about 2009 or 2010 and following same the first named applicant made an application for a U.K. spousal visa which was granted to her, valid from the 30th January 2014 to 29th May 2015. The applicants left Pakistan on 7th May 2014 for the United Kingdom. Subsequently the applicants left the United Kingdom and arrived in Ireland on 5th June 2015 and immediately made an asylum application. It is common case that no asylum application or no reporting to any authority was made by the first named applicant while in the United Kingdom. The applicant complained that her husband and his family in Pakistan were violent towards her. She made the complaint that she had no confidence in the police as her husband had been a policeman in Pakistan as had his father before him. The husband, to the first named applicant's knowledge is working in a take-away in the United Kingdom. The applicant gave a history of fear of returning to Pakistan because her sons would be in an army school which might be vulnerable to attack. The applicant further indicated that she did not wish to return to her husband as her husband prior to her fleeing from the United Kingdom had threatened to advise the authorities so as to ensure that she would be returned to Pakistan. The applicant also fears her daughter would be subject to domestic violence if returned to Pakistan. During the currency of the process which commenced with the asylum application of 5th June 2015 the first named applicant produced a medial report which confirmed that she suffered from PTSD and depression.

7

During the course of the examination of the applicant's file under Dublin III the applicants requested that the discretion provided by Article 17 of Dublin III be exercised so as to enable their application to be maintained within Ireland rather than returning to the United Kingdom and the first named applicant also gave evidence that she was fearful of her husband finding her if returned to the United Kingdom which would not be in the children's best interest as the children had witnessed domestic violence by the husband and indeed her eldest son was also physically abused by her husband.

8

It was noted during the hearing before the Tribunal on 7th November 2016 that the first named applicant's medical status had much improved.

Article 17 of Dublin III
A. Who is entitled to exercise the Discretion?
9

The parties agree that the first query to be addressed under this heading is identifying the body designated to exercise the discretion pursuant to Article 17 of Dublin III. Dublin III is a Regulation establishing the criteria and mechanism for determining the Member State responsible for examining an application for international protection in all of the Member States and Recital No. 17 thereof provides that any Member State should be able to derogate from the responsibility criteria in particular on humanitarian and compassionate grounds even if such examination is not its responsibility under the binding criteria laid down in the Regulation.

10

Article 3 of Dublin III provides that the application for international protection shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter 3 indicate is responsible. It is clear therefore that the Chapter 3 criteria are the relevant binding criteria laid down by the Regulation referred to in Recital No. 17 aforesaid.

11

Article 17.1 provides:-

‘by way of derogation from Article 3 (1), each 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.’

Applicant's Arguments
12

:-

1. The applicants argue that it is ORAC, and on appeal, RAT, and now their successors in title, who are vested with the authority to exercise the discretion as opposed to the argument presented on behalf of the respondent, to the effect, that it is the Minister for Justice on behalf of the State who is vested with such authority.

2. The applicants refer to Regulation 3(1) (a) of Statutory Instrument No. 525 of 2014, to support this proposition. This Regulation is, to the effect, that the functions of a determining Member State will be performed by the Commissioner.

3. The applicants further argue that it was intended that the 2014 Regulation would be fully comprehensive and, therefore, argue that all matters pertaining to Dublin III are included within the Regulation and, therefore, the functions of a determining Member State must incorporate the exercise or otherwise of the discretion provided for in Article 17 of Dublin III.

4. The applicants also refer to:-

(a) Case C-411/10N.S. v. Secretary of State for the Home State, judgment of the Court (Grand Chamber) 21st December 2011 at Para. 98 which provides that where the procedure for determining the Member State responsible takes an unreasonable length of time the Member State must examine the application under the discretionary clause (Dublin II);

(b) The repeat of the above comments is included at Para. 35 of Case C-4/11Bundeserepublik Deutschland v. Kaveh Puid, Judgment of the Court (Grand Chamber), 14th November 2013;

(c) The text book of Kay Hailbronner and Daniel Thym, EU Immigration and Asylum Law: A Commentary (2nd Edition, 2016) at pages 1533-1534 which suggests Art. 17 may become mandatory in some circumstances;

(d) The RSM v. Secretary of State for the Home Department [2017] UKUT 124 (IAC) decision, in particular at Para. 43 which suggests that Art.17 has a role to play in expediting a matter;

- in support of their argument that ORAC, etc, is vested with the Art.17 discretion.

13

In addition, the applicants argue:-

(i) ORAC is vested with the functions of a Member State under Article 6 of Dublin III by virtue of Regulation 3 (3) of the 2014 Regulations which, in turn, provides that the best interest of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation and, therefore,...

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