The High Court has quashed a Refugee Appeals Tribunal decision upholding the transfer of a Sudanese asylum applicant to the Netherlands, finding that the tribunal had not established responsibility under the required EU criteria.
In a judgment delivered on 7 February 2006, Mr Justice Herbert ruled that the tribunal could not base its decision solely on provisions requiring a country to take back an asylum applicant. It first had to apply, in sequence, the criteria in Chapter III of Council Regulation (EC) No. 343/2003 and explain which criterion made the Netherlands responsible.
The applicant had sought asylum in the Netherlands in May 2003, where her application was rejected in October that year. She later applied in the United Kingdom, then left while that application remained under examination. She sought asylum in Ireland on 13 April 2004. A fingerprint search identified the earlier applications, and the Netherlands accepted a request to take her back under a provision concerning applicants whose claims had been rejected.
The applicant appealed the proposed transfer. The tribunal dismissed that appeal in July 2004, finding that the Netherlands was responsible under the regulation’s take-back provisions. The High Court said the tribunal’s decision referred to those provisions but did not show that the Chapter III criteria had been applied or identify the relevant criterion and reasons.
The State respondents argued that the tribunal’s wording could be read as finding the Netherlands responsible under Chapter III, with the later references merely explaining the consequences. The judge rejected that interpretation, saying he could not add words that were absent from the decision or give its plain wording an artificial meaning. He accepted the respondents’ submission that an asylum application remained under examination, for the regulation’s purposes, despite rejection until specified further steps had been taken.
The court granted certiorari quashing the tribunal’s decision dated 22 July 2004. It made no order on the separate request for a declaration that the decision was unlawful. The judge said it was unnecessary to decide the challenge to the validity of a domestic statutory instrument because that issue was moot in the circumstances. The judgment does not record a final decision on whether the applicant could ultimately be transferred to the Netherlands.