A, S, H, A, N, T v The International Protection Appeals Tribunal & Ors (Unapproved) [2021] IECA 296 (09 November 2021)

BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Irish Court of Appeal


You are here: BAILII >> Databases >> Irish Court of Appeal >> A, S, H, A, N, T v The International Protection Appeals Tribunal & Ors (Unapproved) [2021] IECA 296 (09 November 2021)
URL: http://www.bailii.org/ie/cases/IECA/2021/2021IECA296.html
Cite as: [2021] IECA 296

[New search] [View without highlighting] [Printable PDF version] [Help]


THE COURT OF APPEAL CIVIL

Court of Appeal Record No. 2021/66
High Court Record No. 2017/265JR

Donnelly J.
Power J.
Murray J.

BETWEEN

FA

APPLICANT/APPELLANT

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Court of Appeal Record No. 2021/74

High Court Record No. 2017/310JR

BETWEEN

SS

APPLICANT/APPELLANT

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

Court of Appeal Record No. 2021/75

High Court Record No. 2017/211JR

BETWEEN


SH

- AND -


APPLICANT/APPELLANT


THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Court of Appeal Record No. 2021/87 High Court Record No. 2017/181JR

BETWEEN

AA

APPLICANT/APPELLANT

THE MINISTER FOR JUSTICE AND EQUALITY AND THE INTERNATIONAL

PROTECTION APPEALS TRIBUNAL

Court of Appeal Record No. 2021/69

High Court Record No. 2017/138JR

BETWEEN

HN

APPLICANT/APPELLANT

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Court of Appeal Record No. 2021/76

High Court Record No. 2020/193JR

BETWEEN

MT

APPLICANT/APPELLANT

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Murray delivered on the 9th day of November 2021

Summary

Article 17 of the Dublin III Regulation

‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.

The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.

The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken.’

describing the position latterly adopted by the Minister as a ‘volte face’. The situation was, to put it at its mildest, confused.

The litigation

Nor is it necessary for there to be a specific consideration of potential or possible rights. If these are specifically asserted and on a factual basis which, exceptionally, engages such rights, consideration should be given. But this would be a rare exception. This is an administrative scheme assuming equal protection in all participating countries. What it involves is returning those seeking international protection to a country issuing travel or residence documents or where they had previously started an application.’

The reliefs claimed by the applicants

whether the “discretion” available to a Member State under Article 17 of EU Council Regulation 604/13 to examine an applicant’s claim for protection despite it not being that State’s obligation to do so under EU Council Regulation 604/2013 should be applied, or in the alternative:

A Declaration that the failure of the State toput in place a mechanism, through which an applicant, such as the Applicant herein, may appeal a decision/recommendation of the Refugee Applications Commisioner or International Protection Office, that the Article 17 discretion to examine an applicant’s claim not be applied, is contrary to law.’

then the Applicant had no effective remedy in respect of the Commissioner’s decision, which itself is contrary to the Constitution .. and incompatible with European law (Article 47 CFEU). The failure of the Respondents to provide a scheme in the State which includes an effective remedy in respect of refusals of applications such as that impugned herein in accordance with Article 47 of the Charter of Fundamental Rights of the European Union is unlawful and unconstitutional.’

‘ ... failed in her duty to provide the applicant with an effective remedy in the form of an appeal or a review, in fact and in law as required by Article 27 of EU Regulation 604/2013 and Article 47 of the Charter of Fundamental Rights.

‘has breached its legal duties ... and/or breached the applicant’s rights and entitlements under EU Regulation 604/2013 by failing to provide a mechanism to raise humanitarian issues or other reasons as to why Ireland should exercise its discretion to examine the applicant’s claim for protection as provided for by Article 17 of the Regulation’.

‘by ruling that it had no free standing discretion to set aside a transfer decision on the grounds that the Applicant’s rights under Article 8 of the European Convention of Human Rights could be breached by his transfer to the United Kingdom.’

The issues

Knowledge of the Minister’s change of position

at the outset.

‘Once the Supreme Court delivered its NVU judgment, the High Court was bound to follow its findings which was the death knell for this case.

Furthermore, there are no countervailing significant factors in this case which would cause me to exercise my discretion in favour of granting the applicant his costs in this matter. In other proceedings, which I was referred to on behalf of the applicants in the NVU list, it has been averred that the Second Respondent was of the view that she had sole jurisdiction to exercise the Article 17 discretion from late 2015. In argument before me, the settlement of the S case has been set as a marker when this view was apparent and was being acted upon. Accordingly, as these proceedings were instituted after that date, there is no reason why I would depart from the normal rule. Accordingly, I am making no order as to costs in respect of the proceedings.’

The cause of the mootness

The Minister’s decision

‘It does, however, seem to me that, where the immediate or proximate cause of proceedings becoming moot is the action of such a statutory officer or body but where it is sought to argue that the true underlying reason is an external factor outside the control of that officer or body, it is incumbent on the officer or body

concerned to place before the court sufficient evidence to allow the court to assess whether, and if so to what extent, it can fairly be said that there was a sufficient underlying change in circumstances sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a change in external circumstances. ’

(Emphasis added)

Application of Cunningham to the Minister’s decision

Costs and lead cases

in any set of common litigation where there is a legal issue arising in each case which may be significant or, indeed, determinative of important issues (such as liability) it is, in practical terms, so that the first case which happens to be tried (no matter how the matter is managed or not managed) will determine that legal issue in a way that will, in substance bind all subsequent cases.’
It seems to me that it could only be in wholly exceptional circumstances that the very limited time available for the conduct of appeals in this court ... could be used to determine issues of substance which were moot and not within any of the generally recognised exceptions to the mootness rule, and which issues were being determined solely for the purposes of deciding who should pay and who should obtain costs.’

(Emphasis added).

Amendment of proceedings

I would have sought to amend these proceedings with a view to the same challenge except against different bodies, albeit parties to the proceedings, mainly the Minister, that there should be place an appeal from the Minister’s exercise of discretion’.
such issues as the lack of transparency in the scheme in operation under the Dublin Regulations, the absence of an appeal mechanism from any decision of the Minister in regard to discretionary relief, the breach of Article 47 of the Charter of Fundamental Rights of the European Union, the very significant delay in dealing with the Applicant’s application for international protection and the breach of the Applicant’s rights to good administration .„’

The other reliefs claimed in the actions

‘have failed to put in place a transparent system to permit applicants for international protection to apply for discretionary relief under Article 17 of the Dublin III Regulation and to appeal from the denial of same.’
‘to put in place a system to permit applicants for interntional protection to apply for discretionary relief under Article 17 of the Dublin III Regulation.’
If the First Named Respondent [IPAT] is correct in that it has no jurisdiction to consider Article 17(1) claims, then the Third and/or Fourth Named Respondents [the Minister and the State] have failed in their obligations to establish a means by which applicants for international protection may assert an effective remedy to their Article 17(1) claims to which they are entitled under the Dublin III Regulation.’
The respondent Tribunal erred in law by ruling that it had no free standing discretion to set aside a transfer decision on the grounds that the Applicant’s rights under Article 8 of the European Convention of Human Rights could be breached by his transfer to the United Kingdom.’

(v) The different grounds in MT and HN’s proceedings

that the uncertainty surrounding the determination of issues under Article 17 and the failure to make an Article 17 decision or to indicate when same shall issue is in breach of the Applicants’ rights to fair procedures and effective remedies in Irish and EU law’.
The fact that the application to the Minister was only made on 15 September 2020 was something that the Judge was entitled to have regard to, in circumstances where the proceedings were commenced less than five weeks later, at a time when the Appellants appeal was still pending before IPAT. In these circumstances, it was open to the Judge to take the view that the proceedings had been brought prematurely and before the Minister had had a reasonable opportunity to reach a decision on the Article 17 applications.’

Miscellaneous issues

Reference to the CJEU

Would the refusal of a costs award in favour of the Appellant be precluded by/incompatible with the Appellant’s right to, and/or Ireland’s obligation to provide an effective remedy to the Appellant pursuant to Article 27 of Regulation (EU) No. 604/2013 of European Parliament and of the Council of 26th June 2013.’

Conclusion and orders


Result:     Appeal Dismissed


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IECA/2021/2021IECA296.html