The High Court has refused an injunction to stop the transfer of an anonymised Somali protection applicant to France, finding he had not established an arguable case and that the balance of justice favoured refusing relief.
In a judgment delivered on 31 January 2024, Ms Justice Hyland said the application concerned only interim relief. She did not deal with the application for leave to bring judicial review.
The applicant arrived in Ireland in August 2022 and sought international protection. France accepted responsibility for examining his claim under the Dublin III Regulation, having previously refused his protection application. The International Protection Appeals Tribunal (IPAT) affirmed the transfer decision in August 2023. The applicant later challenged the IPAT decision and a deportation order in judicial review proceedings, but those proceedings were withdrawn on 26 January 2024, with costs ordered against him.
The applicant argued that he had sought the Minister’s discretion under Article 17 of the Dublin III Regulation in December 2022 and that he could not be transferred while that request remained undecided. He also relied on a pending reference to the Court of Justice of the European Union in another case concerning whether judicial review of an Article 17 refusal could suspend a transfer.
The respondents disputed that an Article 17 request had been made in 2022. Justice Hyland found that the applicant’s solicitor’s letter that December raised concerns about conditions in France and legal grounds against transfer, but did not refer to Article 17 or ask the Minister to exercise that discretion. She characterised a 24 January 2024 letter to the Minister as the applicant’s first Article 17 application.
The judge said there was no Article 17 refusal to challenge and that the application sought to compel the Minister to make a decision. She found that claim was not arguable in the circumstances, given the application had been made only five days before the new proceedings were issued. She also said an attempt to challenge implementation of the transfer decision was a collateral challenge to a decision contested in the withdrawn proceedings. Other requests concerned hypothetical issues where no Article 17 decision had been made.
In considering the balance of justice, Justice Hyland noted the late application, the lack of an explanation for the delay, and possible prejudice to the respondents if they lost the ability to return the applicant to France. She also considered the pending EU court reference and the possibility that the applicant could be returned to Ireland if he ultimately proved right. She concluded that the timing and absence of a challenge to an Article 17 refusal weighed heavily against granting relief.
The court refused the injunction or stay. The judgment did not determine the application for leave or the substantive judicial review grounds.