Z.S. v The Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 27 June 2018 |
| Neutral Citation | [2018] IEHC 436 |
| Docket Number | [2016 No. 294 J.R.] |
| Court | High Court |
| Date | 27 June 2018 |
[2018] IEHC 436
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2016 No. 294 J.R.]
AND
Immigration and asylum – Dublin III Regulation – Judicial review – Applicant seeking an order of certiorari quashing the decision of the respondent that he be transferred to the UK for the purpose of assessing his asylum claim – Whether the respondent misapplied the provisions of the Dublin III Regulation in breach of the applicant's rights
Facts: The applicant, a Pakistani national, on 9th May, 2016, by order of the High Court (Faherty J), was granted leave to apply for judicial review to seek, inter alia, an order of certiorari quashing the decision of the first respondent, the Refugee Appeals Tribunal, dated 8th April, 2016, that he be transferred to the UK for the purpose of assessing his asylum claim. The applicant submitted that the Tribunal erred in fact and law and misapplied the provisions of Regulation 604/2013 (the Dublin III Regulation) in breach of his rights, or acted unreasonably or irrationally in concluding that the provisions of Article 23 of the Dublin III Regulation were complied with by the notice party, the Refugee Applications Commissioner, in the applicant's case.
Held by Faherty J that the Tribunal's erroneous conclusion that the response of the UK authorities of 29th July, 2015 did not amount to a denial of the take back request was tantamount to a failure by the Tribunal to have regard to the relevant time limits as provided for in Article 23(2) of the Dublin III Regulation. Accordingly, Faherty J found the challenge to the decision of 8th April, 2016 made out.
Faherty J held that she would grant an order of certiorari quashing the decision.
Application granted.
On 9th May, 2016, by Order of the High Court (Faherty J.), the applicant was granted leave to apply for judicial review to seek, inter alia, of an order of certiorari quashing the decision of the first named respondent, the Refugee Appeals Tribunal (hereinafter 'the Tribunal') dated 8th April, 2016, that the applicant be transferred to the UK for the purpose of assessing his asylum claim.
The background to the within application is as follows: the applicant is a Pakistani national who made a claim for asylum to the Offices of the Refugee Applications Commissioner (ORAC) on 16th June, 2015. He claimed that he would be persecuted if returned to Pakistan. He was interviewed pursuant to s. 8 of the Refugee Act 1996 ('the 1996 Act') on 25th June, 2015. He completed an asylum questionnaire on 6th July, 2015.
On 16th June, 2015, ORAC obtained a Eurodac hit in respect of the applicant which linked him to a prior asylum claim made in the UK. The applicant was interviewed by ORAC pursuant to Regulation 5 of the Dublin III Regulations on 25th June, 2015. On 15th July, 2015, ORAC sent a 'take back' request to the UK in relation to the applicant's asylum claim, advising, inter alia, as follows:
'When interviewed, the applicant stated he didn't claim asylum in the UK. Applicant stated he arrived in Ireland from the UK on 16/06/2015. Applicant stated he travelled to Belfast by ferry from Scotland and travelled from Belfast to Dublin by car.
There is no material evidence to suggest that the applicant left the territory of the Member States since the date of his asylum application in the UK.'
The process upon which ORAC initiated contact with the UK is contained in Article 23 of the Dublin III Regulation as follows:
'Article 23
1. Where a Member State with which a person as referred to in Article 18(1)(b), (c) or (d) has lodged a new application for international protection considers that another Member State is responsible in accordance with Article 20(5) and Article 18(1)(b), (c) or (d), it may request that other Member State to take back that person.
2. A take back request shall be made as quickly as possible and in any event within two months of receiving the Eurodac hit, pursuant to Article 9(5) of Regulation (EU) No 603/2013.
If the take back request is based on evidence other than data obtained from the Eurodac system, it shall be sent to the requested Member State within three months of the date on which the application for international protection was lodged within the meaning of Article 20(2).
3. Where the take back request is not made within the periods laid down in paragraph 2, responsibility for examining the application for international protection shall lie with the Member State in which the new application was lodged.
4. A take back request shall be made using a standard form and shall include proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) and/or relevant elements from the statements of the person concerned, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.
The Commission shall, by means of implementing acts, adopt uniform conditions for the preparation and submission of take back requests. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).'
Article 25 of the Regulation provides that the requested Member State:
'shall make the necessary checks and shall give a decision on the request to take back the person concerned as quickly as possible and in any event no later than one month from the date on which the request was received. When the request is based on data obtained from the Eurodac system, the time limit shall be reduced to two weeks.'
On 29th July, 2015, the UK authorities responded to the request advising as follows:
'According to United Kingdom immigration records the above named was last known to be in the United Kingdom in 2013. He has since breached his reporting instructions and his whereabouts are unknown.
In order therefore for the United Kingdom to consider whether it remains responsible for the subject under the Dublin III Regulation, we require comprehensive details of the subject's stated whereabouts and movements between 2013 and his application in Ireland. Pending the above information, your request is respectively denied.'
On 18th August, 2015, ORAC wrote to the UK authorities advising, inter alia, as follows:
'The applicant has not provided any evidence or documents in support of his claimed journey to Ireland or any documents in support (sic) his claim.
In his initial interview, the applicant stated that he never applied for asylum in any other country before. During his Article 5 [personal interview], when informed that he had been fingerprinted in the UK on 20/08/2013, the applicant denied having applied for asylum in the UK. He stated he left the UK by ferry, from Scotland to Belfast, arriving in Belfast on 16/06/2005, and on the same date, he stated that he travelled to Dublin by car. The applicant was asked if he had returned to his country of origin, since he was fingerprinted in the UK and he replied, 'No'.
The applicant stated that he has no family in Ireland. He stated that he has a cousin in London ... and a cousin in Birmingham ...
As there is no material evidence to suggest that the applicant left the territories of the Member States following his applicant for asylum in the UK, as per EURODAC search results with the UK, it is considered, based on the evidence available, that the UK is the Member State responsible for the asylum application of the applicant.'
On the same date, the UK authorities replied:
'I am writing to advise you that the United Kingdom has reconsidered your request to take back the above named under the terms of Council Regulation (EU) No. 604/2013 of 26th June, 2013.
Following further examination of the details of the case and your letter of 18th August, 2015 the United Kingdom will now accept the transfer of the above named for the further consideration of their application for international protection under the terms of Article 18.1(b).'
By decision dated 28th August, 2015, the Refugee Applications Commission (the 'Commissioner') decided that the applicant's asylum claim was one for which the UK bore responsibility as it was the first Member State in which an application for international protection had been lodged by the applicant.
The Commissioner's transfer decision was appealed by the applicant to the Tribunal on 15th September, 2015. The grounds of appeal included the plea that the take back request was not completed within the period specified by Article 23(2) of the Dublin III Regulation.
On 8th April, 2016, the Tribunal affirmed the Commissioner's determination. This was communicated to the applicant's solicitor on 14th April, 2016. In relevant part, the Tribunal's decision reads as follows:
'Article 23(2)
[5.1] The "take back" quest of 15th July 2015 was made just under one month after the Eurodac hit. Therefore, the Tribunal finds that the time limits laid down in Article 23(2) were complied with.
[5.2] The response of the UK authorities of 29th July, 2015 is phased as a denial of the request. However, it is not a final denial of the request and the Tribunal finds that the response is, in substance, a request for further information before a final decision is made in relation to the request.
[5.3] The reply of the Irish authorities on 18th August 2015 is, essentially, a reiteration of information provided as part of the request of 15th July, 2015. The UK ultimately accepted the "take back" request on 18th August 2015.
[5.4] In conclusion, the Tribunal takes the view that the "take back" request of 15th July 2015 was made within time and was...
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