Vaqar Un v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMs. Justice O'Regan
Judgment Date24 October 2017
Neutral Citation[2017] IEHC 613
Docket Number[2017 No. 120 J.R.]
CourtHigh Court
Date24 October 2017
BETWEEN
U.
APPLICANT
AND
THE REFUGEE APPEALS TRIBUNAL,
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

AND

ATTORNEY GENERAL
RESPONDENTS

[2017] IEHC 613

O'Regan J.

[2017 No. 120 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Art. 17 of Dublin III Regulations – S. 5 of the Refugee Act 1996 – Judicial review – Asylum application – Chain refoulement – Art. 8 of the European Convention on Human Rights

Facts: In the present case, the applicant sought an order for quashing the order of the Refugee Appeals Tribunal (‘Tribunal’) judicial review, which held that the applicant should be transferred to another EU country (‘United Kingdom’) for the purpose of assessment of the applicant's asylum application. Initially, the applicant filed an asylum application in which the ORAC had decided that she should be transferred to the United Kingdom (UK). The said decision was appealed by the applicant and was rejected by the Refugee Appeals Tribunal. The applicant contended that due to the risk of chain refoulement, her transfer to the UK would breach s. 5 of the Refugee Act 1996 and secondly, that the Tribunal had erred in not assessing the applicant's appeal under art. 8 of the European Convention on Human Rights. The applicant also asserted that the respondent should have applied the art. 17 of the Dublin III Regulations for making an assessment of the applicant's application.

Ms. Justice O'Regan refused to grant the relief sought to the applicant. The Court stated that there was a failure on behalf of the applicant to refer to art. 8 in her appeal document. The Court, thereafter, pronounced that Dublin III Regulations could not be bypassed by virtue of art. 8 and that the applicant had not shown any rational reason to quash the decision of the Tribunal.

JUDGMENT of Ms. Justice O'Regan delivered on the 24th day of October, 2017
Issues
1

This judgment relates to the remaining issues outstanding following the delivery of a judgment on 26th June 2017 in respect of the issues raised concerning Article 17 of Dublin III and the need, if any, for the second named respondent to publish policies as to the exercise of Article 17 discretion.

2

The applicants had initially filed a statement of grounds when seeking leave. This statement of grounds was subsequently amended. A further amendment was made to that. The statement of grounds considered by the Court is the second amended statement of grounds of the applicant bearing date the 8th May 2017. The reason proffered in respect of this final statement of grounds was because of the content of the affidavit of Brian Merriman on behalf of the respondent sworn on 28th April 2017 when the Minister asserted that the Article 17 discretion was vested in the Minister and not in IPAT or its predecessor. The applicants consider this an about turn on the part of the Minister and hence the statement of grounds required amendments.

3

The relief and grounds incorporated in the second amended statement of grounds relative to the outstanding issues are:

‘(a) At para. (d) of the statement of grounds the nature of the reliefs sought is set out. At para. 2 thereof a declaration is sought that the impugned decision is wrong in law and at para. 8 thereof a declaration is sought that the first named respondent failed, contrary to Article 8 of the European Convention on Human Rights, to have any proper regard to the applicants' right to family and private life in Ireland.

(b) The grounds supporting the declarations sought aforesaid are set out at para. (e) of the statement of grounds. Ground 8 suggests that Article 8 rights were disregarded as the first named respondent failed to consider the first named applicants account of having suffered from domestic violence, failed to have any regard to the medical report furnished and erred in failing to consider the minor applicants accounts of fear of harm in the United Kingdom from their father. At ground 9 it is asserted that in finding that the applicants should be returned to United Kingdom the first named respondent had no proper regard to the best interests of the minor children under Article 6 (1) and 6 (3) of Dublin III.

4

When pressed on the nature of the private life and family life rights in Ireland asserted, the applicants initially indicated that there were no family rights raised, however subsequently tempered this to suggest that no family unity issues arose. As to private life rights it was suggested that three children attend school in Ireland and that they would suffer a disruption in this regards.

Submissions by the applicants to the first named respondent by way of appeal
5

Following the initial application and interview ORAC made a decision that the applicant should be transferred to the United Kingdom for the purposes of assessment of their asylum application. This decision was appealed on behalf of the applicant by way of an appeal document bearing date 24th May 2016 wherein an oral hearing was also sought. That oral hearing was heard on 2nd November 2016.

6

Three grounds were set out in a notice of appeal:

(a) Ground no.1 sets out the background and history of the applicant. The applicant suffered domestic violence from her husband and his family initially in Pakistan. The applicant subsequently suffered domestic violence in the United Kingdom since she travelled there on a UK spousal visa from in or about the 7th May 2014, until she arrived in Ireland on 5th June 2015. Based on same it was indicated that the applicant's fear of returning to United Kingdom was because of a fear of deportation to Pakistan and further abuse from the first named applicant's husband's relatives. The first named applicant also expressed fear that if returned to the UK her husband would find them.

(b) Ground no.2 focuses on the potential fast track procedure in the United Kingdom and on this basis it is complained that ORAC ought to have considered whether a decision to transfer the applicant to the United Kingdom is appropriate or whether to apply Article 17 of Dublin III.

(c) Ground no. 3 asserts that the applicant is at extremely high risk of being deported to Pakistan from the United Kingdom and due to the risk of chain refoulement her transfer would be in breach of s. 5 of the Refugee Act 1996. The third ground raised was an effective plea for Article 17 (1) discretion.

The impugned decision of 24th January 2017
7

The decision records the background to the appeal and refers to the notice of appeal of 24th May 2016 together with subsequent country of origin information received on 27th October 2016 as to the legal uncertainty with regard to Brexit. In addition the decision records the receipt of a G.P. report dated 6th July 2016 and at para. 3.2 there is a brief but accurate synopsis of the report, save as hereinafter mentioned.

8

At the hearing, the first named applicant gave evidence on behalf of all applicants and went through her background as aforesaid and as set forth in the judgment delivered herein on 26th June 2017. She recorded that her husband works in a takeaway in the UK and that he threatened to inform the police in March 2015 of her presence in order to have her sent back to Pakistan. The applicant did not advise the police in the United Kingdom of any issue as she has no confidence in police as her husband and his father were policemen in Pakistan. Her husband holds the family passports and he does not know that the family are in Ireland. In response to the suggestion that the UK had agreed to accept her back to their system, the applicant replied that:-

‘They will deport me and my children. I don't want to go back for my children's sake, especially my daughter’.

9

When asked as to any specific concerns for her children, her fear was that they would be deported from the United Kingdom, her husband will know where they are and that he has all the documents.

10

Fear was also expressed concerning a possible deportation to Pakistan, however, as that is a matter for consideration in the Asylum application as opposed to a possible transfer under Dublin III, it is not relevant to this judgment and therefore, not recorded herein.

11

It is clear from the decision that the children attended school in Pakistan and that they also attended school in the United Kingdom (see para. 4.5 of the decision). The first named applicant reiterated her fear that if she goes back to the United Kingdom her husband will find them.

12

In para. 5.4 of the decision, it is recorded that was not submitted that there were systemic deficiencies in the UK as a basis to be applied to prevent a transfer. This finding has not been impugned at any stage.

13

At para 5.5 of the decision, it is recorded that the applicant's solicitors were not arguing that Article 3(2) applied but that the factors which could be taken into account for that Article could be applied when considering Article 17.

14

At para. 2.2 of the decision, it is recorded that the claim for asylum was made on 5th June 2015 and the dates of birth of the applicants are set out and this para. concludes with:-

‘by virtue of Articles 11 and 20.3, there appears a link to that of their mother.’

13

At para. 5.2 of the decision, it is recorded that the best interests of the children is with their mother and there is no conflict between them. It is further recorded that the voice of the children was heard through the parents and submissions.

14

At para. 5.8 of the decision, it is stated that the details furnished by the applicant give rise to sympathy but do not establish a real risk of being subject to inhuman or degrading treatment if returned to the United Kingdom where they would be received with safeguards, and at para. 5.10 of the decision, it was indicated that it is for the Minister when transferring the applicants to address the medical...

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