The High Court has restrained the Minister for Justice from transferring an anonymised applicant to Spain while his judicial review proceedings continue, because no decision had been made on his request for Ireland to examine his international protection claim.
In a judgment delivered on 12 February 2024, Ms Justice Hyland granted leave to seek judicial review on most, but not all, of the grounds advanced. She also granted an injunction pending determination of the proceedings as then constituted. The court did not decide the underlying challenges or determine whether the applicant should ultimately be transferred.
The applicant, a 23-year-old Algerian national, applied for international protection in Ireland in April 2022. Spain agreed to take responsibility for his application after he had entered that country irregularly from Algeria in July 2021. In July 2022, his solicitors asked the Minister to use Article 17 of the Dublin III Regulation, known as the sovereignty clause, so Ireland would examine his claim. They argued that return to Spain risked destitution and onward refoulement.
The International Protection Office decided in October 2022 that Spain was responsible. The International Protection Appeals Tribunal dismissed his appeal in August 2023 and affirmed the transfer decision. The applicant then brought judicial review proceedings. Transfer arrangements were being pursued for February 2024, but the Minister had still not answered the Article 17 request by the hearing on 30 January.
Justice Hyland granted leave to challenge whether the IPO was entitled to make a decision under the Regulation without proof that Ireland had met Article 35 requirements, and whether the timing of the applicant’s interview made the process procedurally improper. She described the interview argument as very weak but said it just met the low arguability threshold. Leave was also granted on claims that the Article 17 process lacked clarity and that a decision should issue alongside a transfer decision, as well as on an extension of time and costs. Leave was refused on the challenge to the IPO decision itself, which had been replaced by the Tribunal’s decision, and on a claim about whether the Minister personally had to decide Article 17 requests; the latter was hypothetical because no decision existed.
In weighing the injunction, the judge acknowledged that it could prevent transfer under the Dublin III rules even if the applicant ultimately lost, because the six-month transfer period was due to expire on 22 February 2024. She was not persuaded by the applicant’s arguments about conditions in Spain: she noted that the Tribunal had rejected similar claims and that no new evidence had been identified. The decisive factor was the unexplained delay in deciding the Article 17 request. The applicant was entitled, at minimum, to a decision before transfer, the judge held.
The injunction applies pending the proceedings as then constituted. The court listed the matter for 23 February 2024 to address any costs applications.