The High Court has refused a Nigerian mother and her two children’s application for judicial review of decisions transferring their asylum applications to the United Kingdom. Mr Justice Birmingham said the Minister had an implied power to revoke a transfer order, but the applicants had no right to require the Minister to consider their request to stop it in the circumstances of the case.
The family had previously sought asylum in Britain, where their applications and appeals were unsuccessful. After arriving in Ireland in September 2006, they applied for asylum here. The Refugee Applications Commissioner determined that the UK was responsible for examining the applications, and a transfer order was made on 13 November 2006.
The family challenged the decisions, seeking to have the transfer order revoked or not implemented. Their solicitor’s submissions raised the son’s significant hearing disability and related learning difficulties, the daughter’s mother-raised fear that she would face female genital mutilation if returned to Nigeria, and the mother’s mental health difficulties. The mother had been admitted to hospital in Ireland and the children were in an emergency placement with the Health Service Executive.
The judge rejected the challenge to the Commissioner’s determination. He said the decision recorded that the file and the solicitor’s representations had been considered, and there was no cogent evidence to displace that statement. The applicants did not use the statutory appeal, which the judgment described as limited to identifying the responsible country and not automatically suspending transfer.
The Minister’s officials had declined to consider the detailed request to revoke or defer the transfer. The judge held that the legal framework did not give the applicants a right to insist on a separate ministerial adjudication. He distinguished an earlier case involving evidence of a substantial suicide risk from a transfer itself, noting that the concerns here principally related to what might happen after a return from the UK to Nigeria and that several issues had already been raised with British authorities.
However, the court disagreed with the view that the Minister lacked power to revoke a transfer order. It held that an implied power existed, since an exceptional case could arise where proceeding in light of changed information would outrage a sense of justice and breach constitutional or Convention rights.
Despite that legal error in the background to the officials’ approach, the judge concluded it did not establish a right to a hearing or require the decisions to be set aside in this case. He refused the reliefs sought. The judgment does not record a separate order on costs.