The Court of Appeal has allowed part of an appeal over the transfer of a mother and her three children from Ireland to the United Kingdom for their asylum applications to be examined there. It held that the body deciding which state should handle an application may, in a suitable case, exercise the discretion under Dublin III to take responsibility for it on humanitarian or compassionate grounds.
The court did not direct that this family’s applications be examined in Ireland. It allowed the appeal against two High Court judgments on the allocation of that discretion and the need for published criteria. The family’s challenge to the transfer decision itself was otherwise unsuccessful, and the Court of Appeal left the costs issues for a later hearing.
The mother, a Pakistani national, said she had come to Ireland with her children in 2015 after fleeing an abusive husband. She claimed they would face a risk of inhuman or degrading treatment if returned to the UK, where she said her asylum claim would be considered. The UK authorities agreed to accept their applications under the Dublin system. Ireland’s Refugee Appeals Tribunal dismissed the family’s appeal against the transfer decision in January 2017.
The tribunal had said it lacked authority to use the discretionary power in Article 17 of Dublin III. It listed concerns raised for the family—including the mother’s mental health, the children’s schooling in Ireland and alleged domestic violence—but considered that it could not decide whether those matters justified using the discretion.
Justice Baker, delivering the Court of Appeal judgment, concluded that Irish regulations allocated the relevant decision-making functions to the refugee appeals bodies. Article 17 discretion could be used at different stages of the process, she said, and was not an exclusively executive power reserved to the Minister for Justice. She also held that the law did not require the Minister to publish policies or criteria for exercising it.
The court upheld the High Court’s conclusion that the family had not raised their European Convention on Human Rights and EU Charter arguments before the tribunal, so those arguments could not ground the judicial review. However, it said the High Court judge was wrong to suggest that those rights did not need consideration in Dublin transfer decisions. The Court of Appeal left the broader question of how those rights apply for another case where it is fully argued.
On the children’s interests, the court upheld the finding that the tribunal had considered their best interests and decided that they should remain in their mother’s custody. It did not disturb the tribunal’s transfer decision under the Dublin rules.