The High Court has refused a Congolese national’s challenge to the Minister for Justice’s decision not to take responsibility for examining her international protection application in Ireland. Mr Justice Cian Ferriter also discharged an interim injunction that had prevented her removal while the case was being decided.
The applicant sought judicial review of a decision dated 23 September 2021 refusing her request under Article 17(1) of the Dublin III Regulation. Belgium had been identified as responsible for examining her application after she travelled there from South Africa in October 2018 on a Belgian visa. The transfer decision itself was not under challenge in these proceedings.
The applicant argued that transfer could expose her to detention or risks linked to reception conditions and Covid-19, and that her private-life rights were engaged by her relationships, education and community connections in Ireland. The Minister’s decision said the material disclosed no humanitarian or compassionate ground to justify exercising Article 17 discretion. It referred to the absence of evidence of systemic deficiencies in Belgium, no indicated real risk to specified rights, and the applicant’s circumstances in Ireland.
The judge held that Article 27’s automatic suspensive effect for appeals or reviews of transfer decisions did not apply to a judicial review challenge to an Article 17 refusal. The applicant could seek an injunction under the principles in *Okunade*, but the judge concluded the balance of justice weighed against granting one. He noted the absence of contemporary compelling evidence of a rights breach on transfer, and that the applicant had no children or family rights to weigh in the balance.
The court also considered the timing of the Article 17 request. Although the judge accepted there were legal uncertainties before the Supreme Court’s 2020 decision in *NVU*, he found significant delay after July 2020: the request to the Minister came in September 2021, after the Tribunal had refused the appeal against transfer. He said Article 17 requests should generally be made no later than the appeal against a transfer decision, and that delay weighs against an injunction absent exceptional circumstances.
On the substantive challenge, the judge found the Minister had considered the applicant’s representations and provided coherent reasons. He held that the decision addressed the Covid-related arguments in substance and that the Minister had not unlawfully fettered her discretion by referring to exceptional circumstances. The court refused the relief sought and discharged the interim injunction made on 4 November 2021. The judgment records that the injunction ran until 18 November; it does not state that a transfer took place.