Mr Justice Gerard Hogan said the Court of Appeal should have referred questions about asylum applicants’ data protection rights to the Court of Justice of the European Union before ruling on their appeals concerning information supplied by UK authorities.
In a judgment delivered on 14 June 2017, Hogan J said whether Article 34(4) of the Dublin III Regulation gave individuals enforceable rights remained an open question. He would have favoured adjourning the appeals pending an EU court reference under Article 267 TFEU. The supplied judgment contains Hogan J’s view; it does not state the Court of Appeal’s final order or the outcome of the other judges’ deliberations.
The appellants, identified as BS and RS, challenged decisions of the Refugee Appeals Tribunal that they should be taken back by the United Kingdom under Dublin III. They argued that Ireland’s information requests to the UK did not set out their grounds as Article 34(4) required, and that information the UK then supplied included personal data sent without proper authority. They sought erasure of that data and its exclusion from consideration by Irish authorities.
At the appeal hearing, counsel for the Minister acknowledged that the requests did not, in terms, set out their grounds as Article 34(4) required. Hogan J noted, however, that the reason for the requests was implicit: given the geographical proximity of Ireland and the UK, Albanian asylum seekers might have transited through the UK before claiming protection in Ireland.
Hogan J considered that Article 34’s limits on the types of information exchanged, the possibility of refusing a request to protect fundamental rights, and Article 34(9)’s provisions for access, correction or erasure could indicate protections applicants might enforce. But he also questioned whether Article 34(9) could require accurate information to be erased and excluded simply because it followed a defective request.
He concluded that the court could not properly resolve the EU-law questions without a reference to the Court of Justice. The source records his proposed course, not a ruling that the requests were unlawful, an order to erase data, or the final disposition of the appeals.