The High Court has refused Amin Wadria’s application for judicial review of the Minister for Justice’s decision to reaffirm an order transferring him to the United Kingdom under the Dublin II Regulation. The court rejected both grounds of challenge but left open whether the Minister had discretion to cancel the transfer after the UK had already refused Wadria’s asylum application.
Wadria, an Algerian national, applied for refugee status in Ireland in August 2005 after an earlier asylum application in the UK had been refused. The UK agreed to take him back, and a transfer order was made in October 2005. Wadria claimed he had been detained and tortured in Algeria; the judgment says that claim was supported by medical evidence.
An earlier judicial review was stayed from proceeding to a final hearing for several years. In January 2006, the High Court made a consent order restraining the transfer pending the outcome of that case. After the parties reached a compromise in July 2009, the Minister agreed to consider fresh representations, including an updated medical report. The report said Wadria needed specialised care and rehabilitation in a secure environment and that a transfer could severely affect his recovery.
In August 2009, the Minister reaffirmed the transfer order. A departmental memorandum considered the report and concluded that UK medical and social protection services could provide for Wadria’s needs. The Minister said he would inform UK authorities of Wadria’s condition and medical needs before any transfer.
The first challenge argued that the transfer order had lapsed because more than six months had passed since the UK accepted responsibility. The court held that the 2006 consent order suspending the transfer had the same legal effect for this purpose as a contested court order. The six-month period therefore did not make the transfer order incapable of implementation.
The second challenge said the Minister’s consideration of the medical report was inadequate and unlawful. The court found the report had been read and considered, and that the Minister had fulfilled the commitment made in the 2009 compromise. It also held that the conclusion that the transfer itself would not amount to inhuman or degrading treatment was not irrational or unreasonable, provided UK authorities were fully informed of Wadria’s condition.
The judgment distinguished transfer to the UK from any later return to Algeria, saying the Minister’s decision concerned the transfer and not refoulement. It described the existence of a Ministerial discretion in these circumstances as “strongly arguable” but did not decide the point, because it found the Minister had acted lawfully in any event. The application for judicial review was refused.