The High Court has allowed a Libyan applicant to amend his judicial review case to argue that the Minister for Justice acted unlawfully over a request to consider accepting his asylum claim in Ireland under Article 17 of Dublin III. The ruling did not decide whether the Minister acted unlawfully or whether the applicant should be allowed to remain in Ireland.
The applicant had sought to challenge the Refugee Appeals Tribunal’s decision of 17 August 2016, which upheld an earlier decision to transfer his asylum application to the United Kingdom. He argued that the Tribunal should have considered Article 17 discretion even though he had not raised it before either the Refugee Applications Commissioner or the Tribunal.
Ms Justice O’Regan said the applicant could not use judicial review to criticise the Tribunal for failing to address an issue that had not been raised before it. She refused the proposed amendments concerning the Tribunal’s handling of Article 17 and proposed claims under Article 8, which had also not been raised with the decision-makers.
The judgment records that the applicant’s solicitor wrote to the Minister on 26 August 2016, seeking a delay to the transfer so the applicant could undergo two operations and recover. The solicitor also asked the Minister to consider exercising Article 17 discretion in light of the applicant’s serious medical issues. The Minister replied three days later that the applicant’s medical information would be sent to the UK before transfer; the judgment says the reply did not mention Article 17.
The court allowed a separate amendment: a proposed declaration that the Minister and Attorney General had acted unlawfully by failing to ensure that someone considered, or lawfully considered, exercising Article 17 discretion in cases to date. It also allowed a related ground alleging that the Minister ignored the applicant’s request and failed to address it. The judge accepted that the Minister’s position on who held the discretion had changed during related proceedings, making it reasonable that the point had not appeared in the original grounds.
The judgment records that leave to seek certiorari had been granted in October 2016. The ruling addressed the proposed changes to the case and the complaint about an unraised issue; it did not determine the newly permitted claim on its merits.