The High Court has ruled that the discretion under Article 17 of the Dublin III Regulation to examine an asylum application in Ireland remained with the Minister for Justice and had not been given to the Refugee Applications Commissioner or the Refugee Appeals Tribunal.
In a judgment delivered on 26 June 2017, Ms Justice O’Regan also rejected an argument that the Minister had wrongfully failed to publish a policy or criteria for exercising that discretion. The judgment dealt only with the Article 17 issues. It expressly left arguments about private and family life and the best interests of the children outside its scope.
The case arose after the Refugee Appeals Tribunal upheld a decision to transfer a Pakistani mother and her three children to the United Kingdom for their asylum claim to be examined. The mother had raised concerns about violence by her husband and his family, the children’s safety, and her mental health. The family asked that Ireland use Article 17 to examine the application instead. The judgment records that the mother’s medical condition had much improved by the Tribunal hearing.
The applicants argued that domestic regulations assigned the discretion to the asylum decision bodies. The respondents said it was a sovereign discretion of the State, exercisable up to the point of transfer, and that the regulations did not assign it to the Commissioner. The judge held that Article 17 was part of the Dublin system but gave Member States a wide discretion without conditions or policies that would transfer the power to the Commissioner by implication.
The court concluded that the discretion had not been vested in the Commissioner or, in turn, the International Protection Appeals Tribunal under the 2014 regulations. It remained with the Minister for Justice/the Oireachtas. The judgment also found no requirement in the Dublin III Regulation or the domestic regulations to establish a specific system for Article 17 requests, and no wrongful failure by the Minister to publish a policy or criteria.
The ruling addressed who held the discretion and whether a policy or procedure was legally required. It did not decide that Ireland should or should not examine this family’s asylum application under Article 17, nor did it determine the separate rights and children’s best-interests issues identified in the case.