The High Court restrained the transfer of a heavily pregnant asylum seeker to the United Kingdom by air or sea, while allowing for a road transfer to Northern Ireland on the condition that she would not be removed from the island of Ireland before the child was born.
In a judgment delivered on 29 December 2011, Mr Justice Hogan ruled on Rizwana Aslam’s application for leave to seek judicial review and an interlocutory injunction against a transfer order. The order followed a decision that the UK should examine her asylum claim under the Dublin Regulation, because she had previously lived there. The UK had agreed to take charge of the claim on 30 August 2011. Aslam did not appeal that decision.
Aslam, a Pakistani national and Ahmadi, had said in her July 2011 asylum application that she was single. The judgment records that she had undergone an Islamic marriage by proxy with Fakherr Udin, a Pakistani national granted asylum in Ireland in 2008, and was pregnant with his child. The court considered that she should be regarded as married to Udin for the purposes of Article 7 of the Dublin Regulation, which can make a state responsible for an asylum claim where the applicant has a family member recognised as a refugee there.
However, the judge held that Aslam had not disclosed the marriage or her pregnancy to the Minister at the relevant time and had not used the available appeal process. He concluded that it was too late for her to exercise the Article 7 right after her claim had been handled on the basis of the information she provided. The ruling does not determine her asylum claim.
The court separately addressed the risks of transferring Aslam during advanced pregnancy. It said she was to be transferred by ferry, as air travel was considered too late in the pregnancy, and that she was not being transferred to Pakistan. The judge said the State must protect her and her unborn child, and that transfer should occur only when medically appropriate following examination by an appropriate independent specialist. He also said a heavily pregnant woman should not be required to face a sea journey in winter conditions.
The court granted an interlocutory injunction against transfer to the UK by either sea or air. It did not bar a road transfer to Northern Ireland under Article 7, provided Aslam was not taken off the island of Ireland pending the child’s delivery. The judgment records a scheduled civil marriage ceremony for 5 January 2012; it does not say whether that ceremony later took place.