Irish Supreme Court rules Minister for Justice has sole power to decide on transfer of refugee application from another EU state

The Irish Supreme Court has ruled that the Minister for Justice has the sole power to decide if an application for refugee status should be decided in Ireland or transferred to another EU Member State under the Dublin III Regulation. 

The decision comes following a lengthy legal battle between one Pakistani family and the State. The Pakistani family, consisting of a mother and three children, travelled to Great Britain in 2015 on a visiting visa. Once the visa expired, they travelled to Ireland where they sought asylum from an allegedly abusive husband and father who continued to reside in Great Britain. It was claimed that the husband had familial ties to members of law enforcement in Pakistan and any interaction with them would be detrimental to their safety. 

An application for asylum was refused in Ireland after the UK Home Office informed the authorities that the mother’s fingerprints matched their visa records. It was decided that Great Britain, in line with the Dublin III Regulation, would deal with the family’s application for refugee protection.  

The Dublin III Regulation, as stated by Mr. Justice Peter Charleton, was set up “to deter forum choice while providing what is supposed to be an effective, objective and speedy system for the identification of the country responsible for the determination of an application for international protection.” The system prevents duplicate applications for protection being made in multiple EU Member States. 

The family appealed to the Refugee Appeals Tribunal (now the International Protection Appeals Tribunal) relying on Article 17 of the Regulation. The article provides an exception to the general rule that applications for asylum are to be decided by the EU State where asylum is first sought or where the applicant first travelled on a visa. The exception gives the Member State in which asylum is sought discretion to consider it, including on humanitarian and family reunification grounds. 

Before the Tribunal, the family argued that the Tribunal had the power under the European Union (Dublin System) Regulations 2014 to exercise a discretion in favour of considering the substantive application for refugee status. The Tribunal ruled that that was not the case, and to do so would be beyond their legal remit. 

Unsatisfied with this, the family issued judicial review proceedings in the High Court claiming that the Minister was permitted to delegate decision-making powers to the Tribunal and thus violations of such a delegation would be a breach of human rights. However, the High Court found in favour of the State once again ruling that the Minister had sole discretion to decide upon or transfer an international protection application to another EU Member State. 

On appeal to the Court of Appeal, Ms. Justice Baker ruled in favour of the family giving specific emphasis to the exception contained in Article 17 and held that the discretion to decide an application based on humanitarian or compassionate grounds may be exercised by the Tribunal. However, she proceeded to outline that the discretion was “fact sensitive” but could include factors such as that the mother was receiving medication and counselling for post-traumatic stress disorder and depression, and that the eldest son had been subject to physical violence from his father. 

This ruling was overturned by the Supreme Court finding once again in the State’s favour. Mr. Justice Peter Charleton ruled that the power to decide upon or transfer international protection applications to other EU Member States vested solely in the Minister and was not transferred to the Tribunal under the 2014 statutory instrument which gave effect to Dublin III. The statutory instrument delegated “administrative tasks” such as an inquiry into the origin of an applicant for protection or into whether an applicant has already made an application in another Member State.  

Justice Charleton stated that the decision-making bodies had the power to request another country take back an applicant under Dublin III and may determine where Ireland should take back an application from another country. However, it was held that where the transfer is necessary, the Minister is responsible.

Click here for the full decision. 



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