The Court of Appeal has dismissed an appeal by an anonymised Zimbabwean national who argued that Ireland could resume responsibility for her international protection application after a missed transfer deadline under the Dublin III Regulation.
The court held that Article 17(1), which allows a state to choose to examine an application outside the regulation’s ordinary responsibility criteria, does not override the automatic transfer of responsibility under Article 29(2). The six-month period for transferring the appellant from the UK to Ireland expired on 5 February 2017. Responsibility then passed to the UK, the court said.
The appellant had applied for asylum in Ireland in 2011 and for subsidiary protection in 2012. After the Refugee Appeals Tribunal affirmed a negative recommendation on her subsidiary protection application in November 2016, she challenged that decision in judicial review proceedings. A second set of proceedings challenged the International Protection Office’s position that Ireland had no discretion under Article 17(1) to take back her application after responsibility had transferred to the UK.
The Court of Appeal upheld the High Court’s October 2019 refusal of judicial review in the second case. It also upheld the decision to strike out the first case as moot. The court said Article 17(1) permits a state to take responsibility by derogation from the ordinary criteria in Article 3(1), but does not operate as a derogation from Article 29(2). It declined to refer the proposed questions to the Court of Justice of the European Union, finding the first question clear and the second unnecessary because Article 17(1) did not apply to the appellant’s circumstances.
The Minister had also argued that the appellant’s conduct should prevent her obtaining relief. The court said it would have refused relief on that basis if the appellant had otherwise established grounds for it. It cited evidence and unresolved inconsistencies concerning her travel to and time in the UK, and found that her account had not fully addressed those matters. This was an alternative basis for refusing relief, not the court’s ruling on the interpretation of Article 17(1).
The court said any question about whether the UK might seek to transfer responsibility to another state on humanitarian grounds under Article 17(2) was for the relevant UK authorities, not the Irish court. It gave a provisional view that the appellant should pay the costs of the appeals and High Court proceedings. She was given until 8 January 2021 to make submissions on costs; the judgment does not record a final costs order.