The High Court has rejected a Lesotho national’s challenge to a decision affirming his transfer to the United Kingdom for examination of his international protection application.
In a judgment delivered on 4 December 2020, Ms Justice Tara Burns refused the relief sought by LK, including an order quashing the International Protection Appeals Tribunal’s decision. The case was a judicial review of the Tribunal’s 10 June 2020 decision affirming the International Protection Officer’s transfer decision.
LK entered Ireland on 31 August 2018 and applied for international protection on 3 September 2018. Having previously travelled to the UK on short-stay visas, the UK agreed on 19 December 2018 to take charge of his application under the Dublin III Regulation.
LK argued that the International Protection Office panel member who prepared a report lacked authority to examine the case and recommend a transfer. He also argued that adverse comments by the Tribunal about his request for Ireland to exercise its discretion under Article 17 of the Regulation should be removed because they might prejudice a future decision by the Minister for Justice.
The court held that the legal challenge to the panel member’s role had not been appropriately brought before the Tribunal. The Tribunal could affirm or set aside a transfer decision, but could not remit the matter to the IPO for a fresh decision if a legal defect required one. The judge therefore found that the issue was not properly before the Tribunal and did not review its conclusion on that point.
In any event, the judge found that the panel member’s report was assistance to the IPO, not a transfer decision. It summarised the case history, relevant law and LK’s submissions. The IPO’s decision stated that the officer had considered the file and documentation and approved issuing a transfer decision. The judge found that the IPO made the decision and that no function had been delegated to the panel member. She added that, even if the regulations required delegation, their wording permitted the IPO’s functions as a determining Member State to be delegated to panel members.
On the Article 17 issue, the judge said the Tribunal’s comments had no legal effect because the Supreme Court decision in NVU had determined that the Tribunal lacked authority to exercise that discretion. The Minister would consider any future Article 17 application as a new issue, and the Tribunal’s comments should have no bearing on that decision. The judge said it was “inconceivable” the Minister would be swayed by the comments.
The court found against LK on each ground and declined to grant the relief sought. The judgment did not decide any future Article 17 application or order that the transfer take place.