The High Court has refused to stop the transfer of an anonymised woman to the United Kingdom while her application for residency based on marriage is considered. Mr Justice Birmingham dismissed her judicial review challenge to the Minister’s refusal to defer implementation of a valid transfer order.
The woman and her husband sought a declaration that removing her before a decision on residency would be unlawful, along with orders restraining her transfer. The court heard the substantive case on 10 July 2007, after granting leave to seek judicial review that day. The judgment was delivered on 20 July.
The woman had applied for asylum in Ireland in July 2006 after an unsuccessful asylum application in Britain, made under a different name and date of birth. The judgment said she did not disclose that earlier application and gave a false account of how she had arrived in Ireland. The British authorities agreed to take her back, and the Irish Refugee Appeals Tribunal dismissed her appeal against the transfer determination. A transfer order was made in August 2006. She did not report as directed in September and was treated by the authorities as an evader. The order’s validity was not challenged in these proceedings.
The couple married in Ireland in February 2007. A residency application based on the marriage was made on 2 April. In May, an official said such applications were taking at least ten to twelve months to process; the judge said the official was unaware of the transfer order. After the woman was detained in June, her solicitors asked the Department to defer or revoke the order, citing the couple’s family circumstances and constitutional and European Convention rights. The Department refused, saying the marriage did not change which state was responsible for processing her asylum claim and that transfer would not prejudice the residency application. An interim injunction temporarily restraining transfer was granted on 22 June.
The applicants argued that the Minister had discretion to halt implementation and was required to consider their request. The judge accepted that the transfer would significantly affect the couple, but noted that the husband, who held an Irish passport, could join her in Britain. He concluded that a possible discretion to suspend a transfer order did not create an entitlement to have every request considered or require transfer to be deferred while consideration took place. He was not prepared to grant judicial review. The judgment did not decide the pending residency application.