The High Court has referred five questions to the EU's highest court in a case concerning the proposed transfer of a Bangladeshi family from Ireland to the United Kingdom under the Dublin III asylum system.
The second applicant entered the UK on a student visa in 2010. Her husband followed in 2011 and their son was born there in February 2014. After the college attended by the mother closed and their visas were cancelled, the family came to Ireland and applied for asylum on 12 January 2016.
Irish authorities asked the UK to take responsibility for the applications and the UK agreed in May 2016. The family raised the father's medical problems and the fact that their son was being assessed by the HSE for issues concerning autism.
The Refugee Applications Commissioner recommended transfer to the UK and declined to exercise the discretion under Article 17 of the Dublin III Regulation, which allows a state to examine an asylum application even where another state would normally be responsible. The International Protection Appeals Tribunal upheld the transfer in January 2017, holding that it had no jurisdiction over that discretion.
Mr Justice Richard Humphreys said the Irish regulations governing who exercises the Article 17 power were unclear and difficult to reconcile with the State's current position that the power belongs solely to the Minister for Justice.
He referred five questions to the Court of Justice. They included whether decision-makers could consider the likely consequences of the UK's withdrawal from the EU, whether the Article 17 function fell within the role assigned to the Refugee Applications Commissioner, whether an effective appeal had to exist against an Article 17 decision, and how a child's best interests should be treated.
Because of the child's circumstances, the need for expedition under the Dublin system, Brexit and the number of other Irish cases affected, the High Court also asked for the reference to be dealt with urgently or, failing that, under the expedited procedure.
The transfer challenge therefore remained unresolved pending guidance from the Court of Justice.