The High Court has refused an applicant’s request to amend his judicial review case to challenge how a decision was made under Article 17 of the Dublin III Regulation, finding that the proceedings had become moot and did not warrant an exception to the usual rule against deciding moot cases.
The applicant, identified as AC, had challenged an International Protection Appeals Tribunal decision affirming an order to transfer him to Spain for assessment of his international protection application. In February 2024, the court granted an injunction restraining his transfer and gave him leave to pursue most of the grounds in his judicial review.
The Minister for Justice subsequently refused the applicant’s Article 17 request for relief. The applicant then sought permission to amend his grounds to argue, among other things, that the Article 17 process was unlawfully uncertain and that the decision had not been made by the Minister as required. These were arguments advanced by the applicant; the court did not determine their merits.
On 23 February, the Department of Justice told the applicant that the transfer order would expire before a transfer could take place and that his protection application would instead be considered in Ireland. The applicant accepted that this made both his challenge to the transfer order and his proposed challenge to the Article 17 refusal moot. He nevertheless argued that the issues should be heard because they could recur and might otherwise evade review.
Justice Hyland held that deciding the substantive issues could no longer have any legal effect on the applicant. She also rejected the claim that similar issues were certain to evade review: a future applicant might still challenge an Article 17 decision while contesting a proposed transfer, and a court could expedite such a case.
The judge noted evidence from a Department of Justice official that the State intended to consider a more formal Article 17 procedure after a pending Court of Justice of the European Union judgment. That anticipated change could affect both the procedure and who makes the decisions, reducing the likely usefulness of ruling on the applicant’s proposed grounds. The court also noted that the State opposed having the issues decided and that no statutory functions were being curtailed.
Justice Hyland concluded that the case was entirely moot, did not fall within an exception to the mootness rule, and refused the amendment application. The court listed the matter for 3 May 2024 for submissions on costs or other orders, with liberty to apply about the date. The judgment did not determine those further matters.