Findings in High Court of Unlawful and Ultra Vires Exercise of Power by Minister of Justice in Designating UK as a ‘Safe Third Country’

Ms Justice Siobhán Phelan in the High Court recently found that the power exercised by the Minister of Justice in designating the UK as a ‘Safe Third Country’ was unlawful and ultra vires due to a lack of certain safeguards that are required under EU Law. Following the UK’s exit from the EU, in 2020 the Minister for Justice exercised her powers under the International Protection Act 2015 (the “2015 Act”), and signed into law the International Protection Act 2015 (Safe Third Country) Order 2020, designating the United Kingdom of Great Britain and Northern Ireland as a safe third country. A safe third country is a country that the applicant had transited for international protection, and is considered to be safe for the provision of this protection. Designating the UK as a safe third country enables the Irish authorities to decide that an application for international protection is inadmissible, as the applicant arrived from the UK. This individual can then be returned to the UK and have their application decided there.


The case was taken to the High Court by means of judicial review, and there were two lead cases, which challenged the lawfulness of this designation, particularly referring to the UK’s Rwanda Policy. The first of the two lead cases concerned Applicant A from Iraq, who sought asylum in Ireland in 2021 but was returned to the UK as he had originally claimed asylum there in 2018. Applicant B is an applicant from Nigeria, who sought asylum in Ireland in 2022, and was previously a student in the UK, receiving an inadmissibility decision in May 2023. The Rwanda Policy is the result of an agreement between the UK and Rwanda, under their ‘Migration and Economic Development Partnership’, which would allow for the UK to send some international protection applicants that arrive in the UK to Rwanda for their claims to be processed. However, the Rwanda Policy has not been implemented as of yet, following an onslaught of legal challenges, particularly in the UK Supreme Court decision of AAA & Ors. v Secretary of State and Home Department [2023] 1 WLR. In this case, the UK Supreme Court found that the policy was unlawful due to the risk of ill treatment of applicants and risk of refoulement.


In the decision of the High Court, Ms Justice Siobhán Phelan noted that while the concept of a safe third country is provided for in domestic law, it is not ‘precluded’ by legislation of the EU, ‘so long as mandatory conditions precedent to its application, prescribed by EU law, are in place and operating effectively.’ It was found that these mandatory conditions have not been provided for, particularly in respect of the proper provision of conditions in applying the concept of a safe third country, ‘as regards the risk of serious harm.’ Additionally, the court further held that there is no proper provision set out in relation to the Minister or Tribunal being satisfied that there is a possibility of requesting refugee status in the safe third country, and that they can receive international protection per the Geneva Convention if found to be a refugee (invoked by Article 27(1)(d) of the Procedures Directive and reflected in s72A(2)(d) of the 2015 Act).


Therefore the High Court found that as there are no proper provisions, the designation is unlawful and ultra vires, as the scheme is incompatible with law in the EU per its failure to provide for “effective rules of methodology,” which would make sure that conditions for the designation as a safe third country are still being met before an order for return is made. The court further held that there was a failure in giving a ‘broader rights analysis’ before an order for return is made, where the need arises, which was also held to be contrary to EU law, as section 51A(1) of the 2015 Act does not provide for a residual discretion on the minister.


In concluding its findings, the High Court proposed to grant the declaration that the designation of the UK as a safe third country was contrary to EU law as were the states obligations per the delegation, and thus the decision in relation to the applicants should be quashed. 


To read the judgement in A v Minister for Justice & Ors; B v International Protection Appeals Tribunal & Ors [2024] IEHC 183, click here.



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