The Court of Appeal has allowed an Afghan asylum applicant’s appeal in part, granting leave to argue that the International Protection Appeals Tribunal wrongly concluded it could not exercise discretion under the Dublin III Regulation when reviewing a transfer decision.
The judgment, delivered by Mr Justice Gerard Hogan on 19 April 2018, concerns H.N., whose application for asylum in Ireland was made in April 2016. A Eurodac search showed he had previously applied unsuccessfully for asylum in the United Kingdom. The Refugee Applications Commissioner decided to transfer him to the UK, and the tribunal dismissed his appeal against that decision in February 2017.
H.N. then sought judicial review. The High Court granted leave on several grounds but refused leave on two others: whether the tribunal could exercise the discretion under Article 17(1), and whether it could consider the possible impact of Article 8 of the European Convention on Human Rights. H.N. appealed the refusal on those grounds. The Court of Appeal’s judgment addressed the Article 17(1) issue.
The tribunal had accepted H.N.’s evidence about his mental health, finding that he had ongoing significant difficulties and was particularly vulnerable. It noted that he had previously attempted suicide and that his mental health difficulties were linked to uncertainty over his immigration status. The tribunal nevertheless considered the Article 17 discretion to be for the Minister or another respondent, rather than within its own remit.
Hogan J considered the Court of Justice of the European Union’s decision in C.K. v Republika Slovenija. He said that decision made it at least arguable that the tribunal was obliged to consider exercising Article 17(1) discretion and to assess the possible health consequences of transfer. That assessment, he said, could include significant and permanent consequences, not only the physical journey between states.
The court varied the High Court order by granting leave to argue an additional judicial review ground. The proposed ground says the tribunal erred in law by ruling it had no jurisdiction under Article 17(1) and by failing to consider the effects of transfer on H.N.’s mental health.
The ruling grants permission to argue that ground; it does not decide whether the tribunal’s transfer decision was unlawful or whether H.N. should be transferred. The judgment also records that the parties agreed the transfer was governed by Article 18(1)(d), despite earlier correspondence referring to Article 18(1)(b).