The Supreme Court has ruled that the discretion under Article 17 of the EU’s Dublin III Regulation to examine an asylum application in Ireland, despite another country being responsible, rests with the Minister for Justice and was not delegated to refugee decision-making bodies under the 2014 regulations.
The judgment, delivered by Mr Justice Peter Charleton on 24 July 2020, allowed the State’s appeal against a Court of Appeal ruling. It reversed that court’s conclusion that the Refugee Applications Commissioner and Refugee Appeals Tribunal held the discretion. The Supreme Court agreed with the High Court that the decision-making bodies had no such power under Statutory Instrument 525 of 2014.
The case concerned a mother and three children from Pakistan who had travelled to Great Britain on a visiting visa before coming to Ireland in June 2015 and seeking international protection. They alleged that the children’s father, who they said was estranged from them and in Great Britain, had subjected them to brutality. Their asylum claim was not examined in Ireland after checks found a visa issued for travel to Great Britain. The Refugee Applications Tribunal ruled in January 2017 that it lacked authority to use Article 17 to keep the applications in Ireland.
The family challenged that decision by judicial review, arguing that the 2014 regulations had transferred the Article 17 discretion to the bodies deciding Dublin transfers. The State argued that the discretion remained with the minister. The High Court upheld the tribunal’s position; the Court of Appeal later reversed it.
The Supreme Court found that the regulations assigned the commissioner functions such as identifying which country was responsible under Dublin III, requesting information and seeking or accepting responsibility in specified circumstances. The minister was responsible for carrying out a transfer. The court said those administrative and transfer functions did not include Article 17’s broad discretion to decide that Ireland would examine an application for which another country was responsible.
The court also addressed the sequence of decision-making and the parties’ arguments about rights. It said the discretion was not delegated to the decision-making bodies. The judgment noted that effective remedy and any alleged duty to publish guidance were not under appeal. On rights, it said Charter, Convention or constitutional rights would not ordinarily arise in the transfer process, but specifically asserted rights supported by an exceptional factual basis should be considered.
The minister had announced during the appeal that the family’s application would be considered under Article 17. The Supreme Court’s ruling concerned which authority held that discretion; it did not decide whether the family should receive international protection. The judgment said at least 250 other cases raised the same issue.