Wadria v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 February 2011
• Neutral Citation: [2011] IEHC 60
• Court: High Court
• Docket Number: [2009 No. 922 JR]
• Date: 25 February 2011

[2011] IEHC 60

THE HIGH COURT

[No. 922 J.R./2009]

Wadria v Min for Justice

JUDICIAL REVIEW

BETWEEN

AMIN WADRIA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

CONSTITUTION

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EEC REG 343/2003 ART 20(1)(D)

EEC REG 343/2003 ART 16(1)(C)

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 7

EEC REG 343/2003 ART 20(1)

EEC REG 343/2003 ART 20(1)(E)

BIBA LTD v STRATFORD INVESTMENTS LTD 1973 CH 281 1972 3 WLR 902 1972 3 AER 1041

CUTLER v WANDSWORTH STADIUM LTD 1945 1 AER 103 172 LT 207

WILDING v SANDERSON 1897 2 CH 534

MIGRATIONVERKET v PETROSIAN 2009 ECR I-495 2009 2 CMLR 33

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

MAKUMBI v MIN FOR JUSTICE 2008 4 IR 417 2005/38/7916 2009/38/9325 2005 IEHC 403

REFUGEE ACT 1996 (SECTION 22) ORDER 2003 SI 423/2003 ART 7(1)

EEC REG 343/2003 ART 16(1)

EEC REG 343/2003 ART 3

EEC REG 343/2003 ART 2(D)

EEC REG 343/2003 ART 20

EEC REG 343/2003 CHAP III

IMMIGRATION LAW

Asylum

Transfer - Prior application for refugee status in another member state - Transfer order - Order suspending implementation of transfer order - Effect of consent order - Discretion of Minister as to implementation of transfer order - Prior application refused - Whether transfer order suspended - Whether time expired for implementation of transfer order - Biba Ltd v Stratford Investments Ltd [1973]1 Ch 281, Cutler v Wandsworth Stadium Ltd [1945] 1 All ER 103, Wilding v Sanderson [1897] 2 Ch 534 Migrationsverket v. Petrosian and ors. (Case C-19/08) [2009] ECR 1-495 and EM v Minister for Justice, Equality and Law Reform [2005] IEHC 403, [2008] 4 IR 417 considered - Refugee Act 1996 (Section 22) Order 2003 (SI 423/2003), art 7 - European Convention on Human Rights Act 2003 (No 20) - "Dublin II Regulation" Council Regulation (EC) 343/2003, arts. 16(1)(c), 16(1)(e), 20(1)(d), 20(1)(e) - European Convention on Human Rights and Fundamental Freedoms, articles 3 and 8 - Application refused (2009/922JR - Cooke J - 25/2/2011) [2011] IEHC 60

Wadria v Minister for Justice, Equality and Law Reform

Facts The applicant had applied for asylum when he arrived in the State. It had subsequently been discovered that the applicant had made a prior application for asylum in the United Kingdom. It was determined by the authorities here that an order of transfer would be made under Council Regulation (EC) No. 343/2003 (the Dublin II Regulation) transferring the applicant back to the UK. The original transfer order had been made in 2005 and a number of factors had intervened which meant that the order was not implemented. It was contended on behalf of the applicant that the order had lapsed in that a period of six months as set out in the Dublin II Regulation had lapsed and therefore the transfer could not be implemented. It was also claimed that a transfer of the applicant now would be a breach of his rights under Articles 3 and 8 of the European Convention on Human Rights. It was contended that as a consent order (and not a decided one) was made by a previous court not to implement the transfer request (as the outcome of a Supreme Court appeal was being awaited) the six-month period had elapsed.

Held by Cooke J in rejecting the relief claimed. The purpose of the six-month period was to allow the requesting State sufficient time to make practical arrangements for the transfer. The time limit only began from such time as the future implementation was agreed upon and certain and only practical details remain to be determined. Such implementation cannot be regarded as certain if a court hearing the appeal had not yet decided upon its merits but has merely ruled on an application for the suspension of the operation of the contested decision. It was clear that the Minister had agreed in a compromise to consider fresh evidence including medical evidence and this was in fact done.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Cookedelivered the 25th day of February 2011

2 1. By order of the Court (Cooke J.) of the 13 ^th January, 2010, the applicant was granted leave to apply for judicial review of a decision dated the 26 ^th August, 2009, made by the respondent which recommended reaffirmation of a transfer order made in respect of the applicant on the 19 ^th October, 2005, requiring the transfer of the applicant to the United Kingdom under Council Regulation (EC) No. 343/2003 of 18 February 2003, (the "Dublin II Regulation"). The applicant had made a prior application for asylum in the United Kingdom before arriving in the State and making an application here.

3 2. More particularly, the reliefs in respect of which leave was granted included:

4 · - An order of certiorari quashing a notice of the 26 ^th August, 2009, requiring the applicant's transfer to the United Kingdom and terminating the applicant's permission to remain in the State;

5 · - A declaration that the transfer order of the 19 ^th October, 2009, was null and void;

6 · - Alternatively, an order quashing the transfer order of the 19 ^th October, 2009;

7 · - A declaration that the removal of the applicant to the United Kingdom would infringe the duties of the respondent under the Constitution and Articles 3 and 8 of the European Convention on Human Rights;

8 · - Further and other relief and an order for costs.

9 3. The grounds upon which that leave for the review was granted were as follows:-

10 1. The transfer order of the 19 ^th October, 2005, is void and no longer capable of lawful implementation on the ground that, since the expiry of the period of six months following the acceptance by the United Kingdom of the respondent's transfer request (or the later decision on appeal against the transfer order) the transfer has lapsed by virtue of Article 20.1(d) of the Dublin II Regulation and responsibility for the examination of the applicant's asylum application has lain with the respondent:

11 2. The said decision of the 28 ^th August, 2009, is unlawful in that, if the said transfer order remained valid and enforceable as of the 10 ^th July, 2009, the respondent by his agreement of the 13 ^th July, 2009, undertook to reconsider its implementation in the light of the fresh representations and medical evidence as to the effect of the transfer upon the applicant's mental and physical condition and on his rights under Articles 3 and 8 of the European Convention of Human Rights and has failed to so in a manner which was adequate, proportionate and lawful.

12 4. The background to the proceeding can be summarised as follows. The applicant is a national of Algeria who came to the State and applied for a declaration of refugee status in August 2005. He claims that in Algeria he had been detained and tortured, a claim which is said to be supported by medical evidence. Upon arrival in the State and when claiming asylum, the applicant failed to disclose that he had already applied for refugee status in the United Kingdom where his application had been refused. The search initiated by the Office of the Refugee Applications Commissioner identified that earlier application and it was recommended that the United Kingdom be requested to take the applicant back under Article 16(1)(c) of the Dublin II Regulation. On the 21 ^st September, 2005, the United Kingdom authorities agreed to accept the return by way of transfer of the applicant. By letter of the 11 ^th October, 2005, the applicant was given notice of the intention to transfer him to the United Kingdom on that basis.

13 5. The applicant appealed this determination to the Refugee Appeals Tribunal, but by letter of the 25 ^th October, 2005, he was served with the transfer order dated the 19 ^th October, 2005 made under Article 7 of the Refugee Act 1996 (Section 22) Order 2003. (S.I. No. 423 of 2003.)

14 6. Judicial review proceedings were commenced (2005 No. 1278 J.R.) in which an unsuccessful application was made for an interim injunction to restrain implementation of that transfer. Nevertheless, following service of the proceedings, on the 2 ^nd December, 2005, the respondent undertook not to implement the transfer prior to the 16 ^th January, 2006. On the 16 ^th January, 2006, the matter was listed before the High Court (Finlay Geoghegan J.) and an order was made by consent granting leave to seek judicial review in the terms sought together with a timetable forservice of opposition papers and an order restraining the transfer of the applicant to the United Kingdom pending the outcome of the proceedings.

15 7. Thereafter, the pleadings were closed between the parties and when the matter was before the Court (Finlay Geoghegan J.) on the 6 ^th February, 2006, it is said that the respondent was offered an opportunity to have the proceedings heard on an expedited basis as urgent because the six month time limit for the effecting of a transfer order under the Dublin II Regulation was running. It is also claimed, however, that counsel for the respondent indicated that the proceedings should await the outcome of a Supreme Court appeal in a case which was pending and that Finlay Geoghegan J. indicated that this might have the consequence that the transfer order could not be executed if time ran against it. Thereafter, the judicial review proceedings in question were repeatedly adjourned on the application of the respondent until finally fixed for hearing on the 10 ^th July, 2009 when overtures for a compromise were apparently made.

16 8. As a result, the matter was compromised and the proceedings were struck out by consent upon agreed terms set out in a letter of 13th July 2009 by the Chief State Solicitor to the applicant's solicitor including the following:

17 2 "1. The Minister will consider fresh representations on behalf of the Applicant as to...