A v Minister for Justice and Others, B v International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 22 March 2024
• Neutral Citation: [2024] IEHC 183
• Court: High Court
• Docket Number: RECORD NO. 2023/640JR

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000, As Amended

A

Applicant

and

The Minister for Justice, Ireland and The Attorney General

Respondents

B

Applicant

and

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

Respondents

[2024] IEHC 183

RECORD NO. 2023/104JR

RECORD NO. 2023/640JR

THE HIGH COURT

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 22 ^nd day of March, 2024.

TABLE OF CONTENTS

INTRODUCTION	3
GENERAL BACKGROUND AND RWANDA POLICY	3
LEGAL FRAMEWORK APPLICABLE TO INADMISSIBILITY AND RETURN DECISIONS	7
PROCEEDINGS	11
APPLICANT A	11
APPLICANT B	19
DESIGNATION OF UK AS A SAFE THIRD COUNTRY	23
ISSUES	25
DISCUSSION AND DECISION	26
SAFE THIRD COUNTRY DESIGNATION — DEVELOPMENT OF EU AND DOMESTIC LEGAL FRAMEWORK	26
IS THE DESIGNATION ULTRA VIRES?	32
IS THERE A POWER TO DESIGNATE LOST BY REASON OF NON-TRANSPOSITION BEFORE DECEMBER, 2008?	33
DOES THE PRINCIPLE OF NON-REGRESSION PRECLUDE LATE PROVISION FOR DESIGNATION?	35
IS THE POWER TO DESIGNATE UNLAWFUL IN THE ABSENCE OF SAFEGUARDS MANDATED UNDER ARTICLE 38 OF THE RECAST PROCEDURES DIRECTIVE?	37
IS DESIGNATION UNLAWFUL BY REASON OF BREACH OF THE REVIEW REQUIREMENT?	41
IS THERE AN OBLIGATION ON THE MINISTER TO CONSIDER RISK OF RIGHTS VIOLATIONS BEFORE MAKING A RETURN ORDER UNDER S. 51A?	47
IS DESIGNATION RENDERED UNLAWFUL BY REASON OF BREACH OF DATA PROTECTION RIGHTS IN ITS IMPLEMENTATION?	52
RATIONALITY OF DESIGNATION	61
WAS THE MINISTER'S ASSESSMENT OF PROHIBITION OF REFOULEMENT UNLAWFUL OR IRRATIONAL AS CONTRARY TO S. 50A OF THE 2015 ACT? IS THE CHALLENGE TO THIS DECISION A COLLATERAL ATTACK ON THE INADMISSIBILITY DECISION?	62
WAS THE TRIBUNAL INADMISSIBILITY DECISION IN APPLICANT B'S CASE IRRATIONAL?	64
WHETHER THE DECISION UNDER S. 50A IS CAPTURED BY S. 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000?	65
STANDING	67
LACK OF CANDOUR	67
CONCLUSION	70

INTRODUCTION

1 . In December, 2020, contemporaneous with the withdrawal of the United Kingdom from the EU, the Minister for Justice and Equality (hereinafter “the Minister”) signed the International Protection (Safe Third Country) Order 2020 (S.I. No. 725 of 2020) into law in exercise of the power vested under s. 72A of International Protection Act 2015 (hereinafter “the 2015 Act”) (as inserted by section 117 of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020) thereby designating the United Kingdom of Great Britain and Northern Ireland as a safe third country for the purpose of the 2015 Act in December, 2020 (hereinafter “the 2020 Designation Order”).

2 . The concept of safe third country refers to a country transited by an applicant for international protection which is considered safe for the provision of international protection. The concept is different from and should not be confused with the separate and distinct safe country of origin concept which applies to a country whose own citizens are not persecuted (provided for under s. 72 of the 2015 Act).

3 . These proceedings concern the lawfulness of this designation of the United Kingdom and Great Britain as a safe third country in the light of a contentious immigration policy known as “ the Rwanda Policy” currently being pursued by the UK Government. Under the Rwanda Policy the UK Government seeks to transfer asylum seekers to Rwanda for the further processing in Rwanda of their claims.

4 . In the light of the Rwanda Policy, the Applicants challenge the lawfulness of decisions made under the 2015 Act to: (i) refuse to admit each of two applicants of differing nationalities to the protection process in this jurisdiction; and (ii) return them to the UK for further processing of their protection claims in reliance on its safe country designation.

5 . Even more fundamentally these proceedings call into question the very legal basis for giving effect in the State to a safe third country concept in circumstances where Ireland's asylum policy is subject to a common EU policy on asylum and operates within the framework of a Common European Asylum System (“CEAS”).

6 . These two cases have been identified as lead cases and raise issues of principle which are common to a significant number of other cases. Both cases come before me as applications for relief in judicial review proceedings in a telescoped hearing and without applications for leave being first determined. While there is considerable overlap between the issues raised, the cases are not identical. Proceedings have been commenced in each at different stages of the admissibility and returns process provided for in cases where the safe third country concept is applied. In view of the leading nature of the proceedings and slight differences in evidence as between the cases, I have decided to deal with both cases together, distinguishing between them only to the extent necessary to address issues unique to one only of the cases.

GENERAL BACKGROUND AND RWANDA POLICY

7 . The so-called “ Rwanda policy” refers to a UK Government Policy stated to have been developed in response to an increase in the number of people crossing the English Channel in small boats and seeking asylum on arrival in the UK. Under the Policy the UK Government intends to send some people arriving in the UK in small boats and via other ‘inadmissible’ routes, to Rwanda for further processing of their international protection claims.

8 . To give effect to the Rwanda Policy, an agreement between the UK and Rwandan governments was reached in April 2022 as part of a ‘Migration and economic development partnership’ (MEDP) which included an asylum partnership agreement, signed as a non-binding memorandum of understanding (MoU) by the two countries.

9 . Under the terms agreed, those arriving in the UK without permission, with certain exceptions, could be relocated to Rwanda during a trial period. Those making asylum claims would have these determined in Rwanda by the Rwandan authorities and those granted refugee status would stay in Rwanda, ineligible to return to the UK. As part of the agreement, the UK government was to provide development funding to Rwanda. The MEDP further provided for the UK to pay additional processing and integration costs for each relocated person.

10 . The Nationality and Borders Act 2022 and the Illegal Migration Act 2023 together provide for rules on ‘inadmissible’ asylum claims and represent the statutory framework within which the Rwanda Policy was intended to operate. Section 16 of the Nationality and Borders Act 2022 allows for asylum claims from individuals with a connection to a ‘safe third state’ to be declared inadmissible to the UK's asylum system allowing for the removal of such individuals to a safe third state that agrees to receive them, without first having to consider any asylum claim. The Illegal Migration Act 2023 makes further provision for removal of persons arriving in the UK without permission on or after 20 July 2023, where they did not come directly from a country in which their life and liberty were threatened regardless of whether an individual had made a claim for asylum.

11 . The provisions outlining the removal duty and associated requirement to disregard asylum claims from persons meeting the criteria for removal were not yet in force on the date of hearing before me.

12 . In consequence of a series of legal challenges to removals and court rulings in the UK ( AAA & Ors. v Secretary of State for the Home Department), the Rwanda Policy has not yet been implemented. The first planned flight to Rwanda was cancelled following interim measures issued by the European Court of Human Rights (ECtHR) in Strasbourg under its ‘rule 39’ in June, 2022 in the matter of N.S.K. v. the United Kingdom (no. 28774/22). The Strasbourg Court ruled that an applicant should not be removed to Rwanda until ongoing judicial review had been determined. The Strasbourg Court only intervened by granting interim measures, however, when applications for injunctive relief in the said judicial review proceedings were unsuccessful before the UK High Court, Court of Appeal and Supreme Court in June, 2022. The ECHR determined that were N.S.K. removed to Rwanda before the policy's legality was determined, he may face “ treatment contrary to [his] Convention rights” and a “ real risk of irreversible harm” due to the “ lack of any legally enforceable mechanism for [his] return.” Interim orders were also granted in several other cases in June, 2022.

13 . The challenge to the policy proceeded by way of judicial review to the UK High Court. In December 2022, that court ruled that it was lawful for the government to make arrangements for relocating asylum seekers to Rwanda and for their asylum claims to be determined in Rwanda rather than in the United Kingdom ( AAA & Ors. v Secretary of State for the Home Department [2022] EWHC 3230 (Admin) (19th December, 2022). Several of the claimants were granted permission to appeal against the judgment of the High Court. The interim measures which had been granted by the European Court of Human Rights were discharged following the decision of the High Court in the light of orders quashing removal orders in individual cases for inadequate reasoning and failure to consider the evidence put forward, it having been confirmed that the UK Government were not appealing against the quashing of the removal orders in individual cases notwithstanding the appeal against the finding that the policy itself was lawful.

14 . On the 29th of June 2023, the Court of Appeal ruled, by a majority of two to one, that the Rwanda policy was unlawful ( AAA & Ors. v Secretary of State for the Home Department ...