High Court grants leave for judicial review challenging a transfer order under Dublin II Regulation and a subsequent decision to reconsider it.

Neutral Citation Number: [2010] IEHC 90

THE HIGH COURT

JUDICIAL REVIEW

2009 922 JR

BETWEEN

AMIN WADRIA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered the 13th day of January, 2010.

1. On this application leave is sought to apply for judicial review of two particular measures said to have been adopted in

respect of the applicant by the respondent. The primary relief sought relates to what is described as the decision made

on behalf of the respondent dated 26th August, 2009, purporting to affirm an order made in respect of the applicant on

19th October, 2005, requiring his transfer to the United Kingdom and terminating his permission to remain in the State. It

is proposed also to seek an order of certiorari to quash that decision. In addition, leave is sought to obtain an order of

certiorari to quash the transfer order in question made on 19th October, 2009.

2. As a challenge the validity of these two measures does not come within the scope of s. 5 (1) of the Illegal Immigrants

(Trafficking) Act 2000 the higher test of “substantial grounds” prescribed by subs. 2 of that section upon an application

for leave to seek judicial review, does not apply. The Court must therefore be satisfied that an arguable case is made out

that the applicant will be entitled to these reliefs upon a substantial hearing of the application, if leave is to be granted.

3. The challenges to the validity of these two measures turn largely upon the provisions of Council Regulation (EC) No.

343/2003 of 18th February, 2003, establishing the criteria and mechanisms for determining the Member State responsible

for examining an asylum application lodged in one Member State by a third country national (O.J. L50/1 of 25.2.2003,) and

how those provisions fall to be construed and applied in the particular circumstances that have arisen in this case. (The

regulation is hereinafter referred to as “the Dublin II Regulation”.)

4. The circumstances in which these issues arise stretch back over four years but for the purpose of the present ruling

can be briefly summarised as follows.

5. The applicant is a national of Nigeria who entered the State illegally and claimed asylum here on 31st August, 2005. He

did not at that point however, disclose that he had previously applied for asylum in the United Kingdom in 2003 and been

refused.

6. When this fact was discovered by the authorities in this jurisdiction, a request was made to the United Kingdom

authorities on 15th September, 2005, to accept his return pursuant to Article 16 (1) of the Dublin II Regulation. That

request was accepted on 21st September, 2005, and on 11th October, 2005, notice of the determination made by the

Office of the Refugee Applications Commissioner for the transfer of the applicant to the United Kingdom was served upon

the applicant. On 19th October, 2005, the transfer order (which is one of the measures sought to be challenged in the

present application,) was made on behalf of the Minister pursuant to Article 7 of the Refugee Act, 1996 (s. 22) Order

2003. The determination of the Commissioner was appealed to the Refugee Appeals Tribunal pursuant to Article 8 of the

Order but by decision of 18th November, 2005, the Commissioner’s determination was affirmed and the appeal rejected.

7. Prior to the receipt of that appeal decision the applicant’s legal representatives had made representations to the

Minister based upon medical reports to the effect that the applicant had suffered treatment consistent with torture at

the hands of the authorities in Algeria and that he was suffering extreme psychological problems which required urgent

and significant therapeutic intervention and prolonged counselling support in order to overcome his difficulties. The

Minister was requested to take these considerations into account prior to implementing the transfer.

8. These representations were rejected on the part of the Minister who pointed out that the appeal to the Tribunal did

not operate to suspend the transfer but an undertaking was given that any medical reports would be transferred to the

United Kingdom authorities on the applicant’s behalf.

9. On 28th November, 2005, an application for judicial review was initiated under Record No. 1278/2005/JR. The reliefs

then proposed to be sought included an order of certiorari quashing the Minister’s refusal to consider the representations

that had been made; injunctions restraining the implementation of the transfer order and an order of mandamus

compelling the Minister to give consideration to the representations. The validity of the transfer order was not, itself,

contested. When that application was listed before the Court on 16th January, 2006, an order was made by consent

granting leave to bring the application for the reliefs set forth at para. 4 of the statement of grounds, together with an

injunction restraining the transfer of the applicant to the United Kingdom pending the determination of the proceeding.

10. When, following a number of adjournments at the apparent request of the respondent, the substantive proceeding

was listed for hearing on 10th July, 2009, the Court was informed that a settlement had been agreed between the parties

and the matter was disposed of upon terms which were apparently recorded in a letter of 13th July, 2009. While the

parties have not considered it necessary to inform the Court of the full terms of that settlement, the subsequent

correspondence indicates that it included a term to the effect that the Minister would consider fresh representations as

to why the transfer order ought not to be executed together with the Minister’s consent “to an injunction restraining the

transfer of the applicant for a period of 21 days and for such period thereafter as may expire until the receipt of notice of

the Minister’s determination by the applicant’s solicitors, such notification to be sent by registered post”. (See the letter

of 28th August, 2009 from Messrs. Stanley & Co. to the Office of the Chief State Solicitor.)

11. The applicant’s solicitors furnished these fresh representations by letter of 31st July, 2009, based upon an “updated

medical report of 28th January, 2009” with a request that all prior submissions in respect of the applicant’s case be

considered. By letter of 26th August, 2009 the Dublin II Transfer Unit of the Repatriation Section of the Irish

Naturalisation and Immigration Service (INIS) effectively rejected the fresh representations and confirmed that the

transfer order would now be implemented. Although the text of the letter itself does not mention the settlement of 13th

July, 2009, or the fresh representations, it included by way of attachment the file note of analysis signed off by the unit

on the same day in which the fresh representations and the content of the medical report of 28th January, 2009, are

analysed. The analysis notes that the applicant “requires specialised care and rehabilitation in a secure environment

where he can safely continue to recover” and that the medical report considered that a transfer at this stage “may

severely affect his full psychological and emotional recovery”. The note points out that the appeal to the RAT had not

operated to suspend the transfer and it concludes by recommending that the transfer order of 19th October, 2005 be

affirmed.

12. On 1st September, 2009, Messrs. Stanley & Co. wrote on behalf of the applicant making the claim that now forms the

basis of the present proceeding namely that the transfer order of 19th October, 2005, had by then become void because

it had not been executed within the six month period following the acceptance by the United Kingdom authorities of the

applicant’s return as required, it was argued, by Article 20.1 (d) of the Dublin II Regulation. In particular, the following

claim was made:

“It is our position that the transfer order is void by reason of the passage of time. In our client’s case, the Court did

not decide that the judicial review proceeding, 2005/1275 JR had suspensive effect in respect of the transfer order.

On the contrary, the High Court (Ms. Justice Mary Finlay Geoghegan) gave your client an opportunity to have the

proceedings heard on an expedited basis because it involved a transfer order. Your client’s view, however, was that

the proceeding should await the decision in the case of Makumbi v. The Minister. It was pointed out by Ms. Justice

Finlay Geoghegan in open court that this would have the consequence that the transfer order could not be

executed due to time having run against it.”

13. In addition, the letter argued that the determination of 26th August, 2009, had failed to consider the evidence

submitted as to the “multi-disciplinary treatment being received by the applicant” for his physical and mental trauma and

the medical evidence to the effect that “any change of transfer at this stage may severely affect his full psychological

and emotional recovery which he has struggled to achieve in the three years here”.

14. By letter also dated 1st September, 2009, the transfer unit rejected these claims and arguments and confirmed that

the transfer order to the United Kingdom would now proceed. It again offered to forward any relevant medical reports to

the United Kingdom authorities so that they would be aware of the applicant’s medical condition and in a position to

assess any appropriate treatment for him.

15. It was in these circumstances that the present judicial review proceedings were commenced and on 7th September,

2009, an interim injunction was obtained ex-parte from Charleton J. restraining implementation of the transfer order.

16. It is clear from this recital of the history of the two proceedings that the present application for leave raises, in

effect, two central questions in respect of which leave might be granted if they are considered to establish an arguable

case for the relief sought.

17. The first concerns the proposition that the transfer order is no longer valid and capable of implementation due to the

lapse of time in excess of the six month period stipulated in Article 20 (1) (d) of the Dublin II Regulation. If that argument

is shown to be well founded it would appear unnecessary for the Court to examine the issues raised in relation to the

decision of 26th August, 2009, as its only legal effect, if any, is to affirm an intention to give effect to the earlier order

which would then be no longer valid. On the other hand, if the transfer order remained valid and capable of

implementation in July, 2009, an issue arises as to whether that validity could be affected by an agreement on the part of

the Minister to consider fresh representations prior to its implementation.

18. The Court is satisfied that an arguable case for the grant of leave has been made out in these circumstances but

primarily because there is considerable doubt, in the Court’s view, as to how particular provisions of the Dublin II

Regulation fall to be interpreted and applied in the specific circumstances which have arisen here.

19. It is to be noted first that one of the fundamental objectives of the Dublin II Regulation is to improve the operation of

the asylum process throughout the Member States by ensuring that, so far as practicable, an asylum application made by

a third country national is examined only once by the asylum authority of one Member State thereby avoiding a

duplication of procedures in a number of Member States. Thus, having set out in Chapter III the hierarchy of criteria for

determining which Member State shall be responsible for the examination of an asylum application, Chapter V sets out the

procedures for the taking charge of an asylum-seeker and his or her transfer from one Member State to another for that

purpose. Three sub-paragraphs of Article 16.1 deal, for that purpose, with a number of situations including, (c) where the

original application is under examination in the requested Member State; (d) where the applicant has withdrawn an

application under examination in one Member State and made an application in another; and (e) where the original

application has been examined and rejected in one Member State and the applicant is in a second Member State without

permission. Clearly, it is this last situation which obtained in the present case. The applicant was refused asylum in the

United Kingdom, then absconded and entered the State without permission.

20. Article 20 prescribes the arrangements for the taking back of the asylum-seeker by the requested Member State.

Paragraph 1 (d) provides that the transfer is to be carried out “after consultation between the Member States concerned,

as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by

another Member State or of the decision on appeal or review where there is a suspensive effect”.

21. The requesting Member State then notifies the asylum-seeker of the transfer decision. Para. 1 (e) provides:

“This decision may be subject to an appeal or review. Appeal or review concerning this decision shall not suspend

the implementation of the transfer except when the courts or competent bodies so decide in a case by case basis if

the national legislation allows for this.”

22. Article 20.2 then provides for the consequence of not implementing the transfer within that six month time limit. The

paragraph reads:

“Where the transfer does not take place within the six months time limit, responsibility shall lie with the Member

State in which the application for asylum was lodged.”

23. The Court notes in passing that it may not be entirely clear how this provision is intended to operate in the situation

envisaged in Article 16.1 (e) namely that of the present case where an asylum application in one Member State has been

rejected and the asylum-seeker is in a second Member State without permission. As in the present case, an asylum

application has been lodged both in the United Kingdom and in this jurisdiction. Logically it would seem to follow that the

effect of para. 2 is to transfer responsibility to the requesting Member State where the transfer has not been carried out

within the time limit and this would appear to be consistent with other provisions such as Article 19.1 where the

expression “the Member State in which the application for asylum was lodged” clearly refers to the requesting Member

State and not to the Member State responsible for examining the application. On the other hand, if the effect of para. 2

in these circumstances is to transfer responsibility to the respondent to examine the asylum application which has been

lodged here, it is difficult to reconcile the provision with the legislative objective, given that a first asylum application has

already been lodged in the United Kingdom but has been examined and rejected.

24. That possible difficulty of interpretation aside, however, it appears to the Court that the primary issue raised in

relation to the continuing validity of the transfer order in this case after the six month period, lies in the significance to be

attributed to the wording in Article 20.1 (e) to the effect that an appeal against the transfer decision “shall not suspend

the implementation of the transfer except where the Courts or competent bodies so decide in a case by case basis, etc.”.

25. As a matter of purely national law and procedure, there could be little doubt but that from 16th January, 2006

onwards, it was not “practically possible” for the Minister to give effect to the transfer order because of the injunction in

place in the court order of that date. Any attempt on the part of the Minister to transfer the applicant while that order

was in force would have constituted a contempt of the order and the fact that the order had been made by consent

would be immaterial in that regard. The precise problem that arises in this case concerns the issue as to whether the

making of the order of 16th January, 2006, by consent constitutes a “decision in a case by case basis” on the part of the

High Court that the transfer decision should be suspended. Did the High Court so decide? On the face of it, it would seem

somewhat untenable to argue that, having brought an application before the Court for the very purpose of obtaining an

injunction to restrain the transfer and having obtained the restraint thus sought, this did not amount to a decision in the

specific case that implementation of the transfer should be suspended. While the Court, when informed of the consent,

may not have been obliged to make any determination of the issue by reference to the merits of the case, it must at

least be taken as having accepted that it had the necessary jurisdiction to make such an order even if by consent and to

that extent to have “decided” that an injunction could be made as agreed.

26. On the other hand, the purpose of the provision in para. 2 appears to be to ensure that while the mere

commencement of an appeal against a decision to transfer will not have suspensive effect, national legislation can provide

for such an eventuality upon condition that the suspension is brought about by the specific intervention of the Court or

competent body in the appeal or review procedure for the purpose of making a deliberate decision to that effect in the

individual case. If, instead of obtaining the court order on 16th January, 2006, the parties had simply agreed privately to

the adjournment of the proceeding on the basis of an undertaking from the Minister to postpone the transfer until some

future date, there could be little doubt, in the Court’s view, that there would then be any “decision in a case by case

basis” for the purposes of paragraph 2.

27. There is a further possible difficulty that may need to be resolved in this regard. The “decision” which is the subject

matter of the provision in para. 2 is the decision by the two Member States in consultation to transfer the applicant to

the responsible Member State and not undertake the examination of the asylum application in the Member State in which

the applicant is present. It is that decision that “may be subject to appeal or review”. In the present case the decision to

make the transfer order of 19th October, 2005, following the acceptance by the U.K. authorities, was the subject of an

appeal to the RAT and that procedure concluded in the appeal decision of 18th November, 2005. A question accordingly

arises, therefore, as to whether the suspensive effect of that appeal had any relevance after that date. As pointed out

above, the judicial review proceeding, No. 1278/2005 JR, did not seek to challenge the validity of the transfer order of

19th October, 2005, but sought to quash a distinct decision of the Minister dated 21st October, 2005, in which he was

said to have declined to consider the humanitarian representations made on behalf of the applicant to the Minister

independently of the appeal made to the Tribunal.

28. In the light of the foregoing, the Court is satisfied that sufficient arguable doubts have been raised as to the precise

status of the transfer order of 19th October, 2005, and as to its continuing enforceability following the expiry of the six

month period provided for in Article 20 of the Dublin II Regulation, to warrant the issues being examined on an application

for judicial review. It is unnecessary, of course, to emphasise that the Court is now granting leave only. It may well be

that further issues as to the entitlement of the applicant to judicially review the transfer order may be raised in opposition

by the Minister including, obviously, the fact that the applicant at the very least acquiesced in the continuation of the

consent injunction in circumstances where the transfer order had not been questioned until July, 2009 and thus, long

after an application for judicial review of the transfer order might have been sought on these grounds or an application for

mandamus brought to compel the Minister to examine the asylum application.

29. Having decided to grant leave to the applicant to seek reliefs in respect of the transfer order of 19th October, 2005,

the Court will also grant leave in respect of the challenge proposed to be made to the decision of 26th August, 2009. In

this regard, however, the Court considers that the question that is raised is whether the Minister was ever under any

obligation to consider fresh representations as to why a transfer should not be implemented where a valid transfer order is

in existence? It would seem to the Court that in this regard the position of the Minister under the Dublin II Regulation is

quite distinct from and not analogous with his position when in receipt of an application to revoke an extant deportation

order under s. 3 (11) of the Immigration Act 1999. No equivalent jurisdiction is specifically created in respect of a transfer

order although it has been decided in the Makumbi case (Unreported, High Court, Finlay Geoghegan J., 15th November

2005,) that the Minister has a discretion not to implement a valid order at least where, following its making, he is

presented for the first time with evidence of a substantial risk to the life of the asylum seeker if implementation takes

place. Thus, the arguable issue that arises in this regard is whether the agreement reached in the settlement of 13th

July, 2009 to consider fresh representations, was capable in law of creating an obligation on the part of the Minister to

make any particular determination and, if so, whether he failed to do so in the decision of 28th August, 2009, in a manner

which rendered the otherwise valid transfer order inoperable.

30. Accordingly, leave will be granted to the applicant to apply for the reliefs sought as set out at para. 4 of the

statement of grounds for judicial review dated 7th September, 2009, at paragraphs: I, IV, V, VI, VII and VIII. The grounds

upon which those reliefs may be sought will, however, be reformulated as follows:

1. The transfer order of 19th October, 2005 is void and no longer capable of lawful implementation upon the ground

that, since the expiry of the period of six months following the acceptance by the United Kingdom of the

respondent’s transfer request (or the later decision on appeal against the transfer order) the transfer order has

lapsed by virtue of Article 20.1 (d) of the Dublin II Regulation and responsibility for the examination of the

applicant’s asylum application has lain with the respondent;

2. The said decision of 28th August, 2009 is unlawful in that, if the said transfer order remained valid and

enforceable as of 10th July, 2009, the respondent, by his agreement of 13th July, 2009, undertook to reconsider its

implementation in the light of fresh representations and medical evidence as to the effect of the transfer upon the

applicant’s mental and physical condition and on his rights under Articles 3 and 8 of the European Convention of

Human Rights and has failed to do so in a manner which was adequate, proportionate and lawful.