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TAJ v Minister for Justice and Another

Applicant/Plaintiff: T.A.J.
Respondent/Defendant: Minister for Justice and Equality and Refugee Appeals Tribunal
Nature of Proceedings:Judicial Review
[2015] IEHC 726
Court/s:High Court
Judgment Date/s: 16 November 2015
Judge: MacEochaidh J.
Category:Refugee
Keywords:Dublin Regulation; Transfer Order; Transfer; Appeal; Effective remedy
Country of Origin: Bangladesh
URL: http://www.courts.ie/Judgments.nsf/0/7F8E11F88B7F263A80257F060052AEE1
Geographical Focus:Ireland

Facts:
The applicant, a Bangladeshi national, claimed asylum in Ireland. He denied ever having been outside Bangladesh before travelling to the State and said that he had never applied for asylum anywhere. He failed to disclose previous asylum history in other EU Member States. The Refugee Applications Commissioner made a request for information to the United Kingdom authorities pursuant to Article 34 of Regulation (EU) No. 604/2013, (“the Dublin III Regulation”). This disclosed a previous immigration history in the United Kingdom, which the applicant accepted was correct.

A decision was then made by the Commissioner that the United Kingdom was the responsible Member State for examining his application under art. 12(4) of the Dublin III Regulation. The applicant issued proceedings and obtained leave ex parte to challenge the decision of the Refugee Appeals Tribunal, affirming the decision of the Commissioner that the United Kingdom was responsible for dealing with his application. He sought an interlocutory injunction enjoining the Minister for Justice from transferring him to the United Kingdom.

The court refused to grant the injunction sought.

Reasoning:
First, it rejected his contention that, by virtue of Article 29(1) of the Dublin III Regulation, the Minister was required to transfer him to the United Kingdom at the latest within six months of the British authorities’ acceptance of the “take back” request. It held that his appeal to the Tribunal operated to suspend the six months time-limit, which began to run from the date of the decision of the Tribunal.

It also rejected his argument that his proceedings constituted a “review” within the meaning of Article 27(1) of the Dublin III Regulation and that he was entitled to remain in the State pending their outcome. It noted that, under the Dublin III Regulation, the State was obliged to provide an effective remedy against a transfer decision. The remedy was an appeal to the Tribunal. No part of Article 27(1) required the State to provide, in addition to an appeal or a review, a further level of appeal or review. Thus, the availability in Ireland of judicial review to challenge a decision on an appeal was not a requirement of EU law but purely a matter of domestic law provision.

In those circumstances, the application for an interlocutory injunction fell to be determined in accordance with the decision of the Supreme Court in Okunade v. Minister for Justice [2012] 3 IR 152, which indicated that prima facie valid orders, including transfer orders, were to be given effect. There was nothing to indicate that this should not apply in the applicant’s case and no harm would come to him from having his asylum application dealt within the United Kingdom.

Decision:
The court therefore refused the injunction sought.

Principles:

Where an asylum applicant appeals to the Refugee Appeals Tribunal against a decision of the Refugee Applications Commissioner that another Member State is responsible for examining his or her asylum application under the Dublin III Regulation, the time-limit for transfer is suspended during the currency of the appeal. The effective remedy required by the Dublin III Regulation is constituted by the appeal to the Refugee Appeals Tribunal, and not judicial review in the High Court.


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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