The Court of Appeal has dismissed M.M.’s appeal against the refusal of his judicial review challenge to a decision transferring him from Ireland to Sweden under the Dublin III Regulation. The court held that Ireland was entitled to request Sweden to take him back because Sweden had previously examined his international protection application and thereby had implicitly determined that it was responsible for examining it. The court said that conclusion could stand even if Sweden’s responsibility had arisen through the Regulation’s default time limits.
M.M., an adult asylum seeker from Iran, applied for international protection in Ireland in August 2020. Eurodac records showed earlier applications in Belgium, Sweden and the United Kingdom. Ireland requested that the UK and Sweden take him back. The UK refused, saying Sweden was responsible; Sweden accepted Ireland’s request under Article 18(1)(d), which concerns an application previously rejected. Ireland did not request that Belgium take him back.
M.M. argued that Ireland should have requested Belgium, where Eurodac recorded his first application, or at least investigated how Sweden came to examine and reject his claim. He said there was no evidence that Sweden had been found responsible through a completed determination, and that the conditions for a take back request were therefore not established. The Tribunal maintained that the transfer decision was lawful.
The High Court refused M.M.’s judicial review application in May 2022. It reasoned that a default under the time limits for requesting or carrying out a transfer between Sweden and Belgium must have occurred, making Sweden responsible. The Court of Appeal considered whether Ireland could rely on Sweden’s earlier examination and whether an earlier default could satisfy the conditions for a later take back request.
The appeal court said Sweden’s acceptance of Ireland’s request did not, by itself, establish that Ireland had properly made it. But under the take back procedure, Ireland was not required to determine which country was ultimately the correct state to examine the application. The court concluded that Sweden’s decision to examine the claim amounted to an implicit determination of responsibility. It saw no basis, absent evidence to the contrary, to assume that Sweden had misapplied the Regulation. It also held that a determination reached through a default time limit could satisfy the relevant conditions.
The court expressed no view on whether Ireland should have made requests to multiple countries, or whether it should have requested Belgium. It rejected M.M.’s argument that Belgium would have had priority and dismissed the appeal. Its provisional view was that the respondents should receive their costs, while allowing M.M. two weeks from delivery of the judgment to notify the Registrar if he wished to seek a short hearing on costs. The judgment records that the other two appeal judges agreed.