The High Court refused a Zimbabwean applicant’s judicial review of an International Protection Office decision that Ireland had no discretion under Article 17 of the Dublin III Regulation to take responsibility again for examining her international protection application. The court also dismissed a separate challenge to an earlier refusal of subsidiary protection because the examination of her application was now the United Kingdom’s responsibility.
The judgment, delivered by Mr Justice David Keane on 21 August 2019, dealt with two linked sets of proceedings. The main issue was whether Ireland could use Article 17(1), the regulation’s discretionary clause, to reassume responsibility after a missed transfer deadline under Article 29(2).
The applicant had applied for asylum in Ireland in 2011 and later sought subsidiary protection. In 2016, after she left Ireland and entered the United Kingdom unlawfully, UK authorities made a request for Ireland to take her back. Ireland accepted the request, but the transfer did not happen within six months, and no extension was sought during that period. In February 2017, the Irish office responsible for protection applications told the UK Home Office that responsibility had transferred to the United Kingdom under Article 29(2).
The applicant’s lawyers later asked Ireland to use Article 17 to take responsibility again. In a July 2017 letter, the International Protection Office said Article 17 contemplated the person being present in the jurisdiction, and that the United Kingdom was then responsible. The State acknowledged that the letter was wrong to say the applicant had made another protection application in the UK. The respondents also clarified in court that they did not argue that presence in Ireland was a necessary condition for using Article 17.
The applicant argued that Article 17 still allowed Ireland to reassume responsibility and that Ireland had breached the regulation by not considering whether to accept her transfer. She also challenged the absence of a designated procedure for exercising Article 17 discretion.
The judge held that Article 17 derogates from the ordinary responsibility criteria in Article 3(1), not from the transfer rules in Article 29. Because the six-month transfer period had expired, responsibility had shifted to the United Kingdom under Article 29(2). The court therefore found no legal error in the IPO’s conclusion that Article 17 discretion did not arise after February 2017, and no breach in Ireland’s failure to consider accepting a transfer after that point. It did not determine the challenge concerning a policy or procedure for Article 17, since that issue did not arise on these facts.
The court refused the judicial review of the July 2017 decision. It then dismissed the 2016 proceedings challenging the tribunal’s November 2016 refusal of subsidiary protection as moot, because there was no longer a live controversy about examination of the application in Ireland.