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BS and RS v Refugee Appeals Tribunal

Applicant/Plaintiff: BS and RS
Respondent/Defendant: Refugee Appeals Tribunal
Citation/s: [2017] IECA 179
Nature of Proceedings: Judicial Review
Court/s: Court of appeals
Judgment Date/s: 14 June 2017
Judge: Peart M.
Category:Refugee
Keywords:Asylum application (Examination of an); Asylum Seeker (Secondary Movement of); Dublin Regulation; Transfer Order;
Country of Origin: Albania
URL: http://www.courts.ie/Judgments.nsf/0/EC4DCF094716ADFB802581440027FC14

Facts:

The applicants were two Albanian asylum seekers who challenged the decision of the Refugee Appeals Tribunal upholding the decision of the Office of the Refugee Applications Commissioner that the United Kingdom was the member state responsible for determining their applications for asylum. The applicants claimed asylum in Ireland on 16 December 2014, and completed their asylum application questionnaires on 26 December 2014.  An information request by the Office of the Refugee Applications Commissioner to the United Kingdom, under Article 34 of the Dublin III Regulation, found that persons whose fingerprints matched those of the applicants (although under different names), had held a valid UK visa for the period 23 October 2014 to 23 April 2015 in contradiction to information given by the applicants in their asylum application questionnaires. ORAC found, pursuant to Article 12.2 of the Regulation, that the UK was the state responsible for examining the applications, as the applicants were in possession of valid UK visas.

This decision was upheld by the Refugee Appeals Tribunal and the applicants sought judicial review of that decision on the basis that the request from the Office of the Refugee Applications Commissioner to the United Kingdom under Article 34 of the Dublin III Regulation on the Annex V request form was unlawful because the request form did not comply with Article 34  by reason of the failure to set out the grounds upon which the request was being made, and the failure to state the evidence on which the request was based.  The applicants argued that this unlawful request to the UK resulted in transmission of personal information about them in the reply from the UK, in breach of the principle of preventing unauthorised disclosure under the Data Protection Directive 95/46/EC.  The applicants also argued that the unlawful request was a breach of their right to protection of privacy under Article 8 of the EU Charter of Fundamental Rights and Article 8 ECHR.  They submitted that such data unlawfully obtained should be erased in accordance with Article 34(9) of the Dublin III Regulation and excluded from consideration.  

The respondents accepted that the Annex V form was not completed in strict compliance with the Regulation, in particular that it failed to identify that the information was being sought for the purpose of establishing the member state responsible for determining the applicants’ asylum applications, but argued that in substance the request was a valid request and also that any “frailty” in how the form was completed did not give rise to a right of challenge by the individual who was  the subject of the request.

The High Court (Humphreys J.) found against the applicants on all the grounds put forward. The applicants subsequently appealed the decision to the Court of Appeal.

Reasoning:

The three-judge Court of Appeal found against the applicants in a majority 2-1 decision. The judgment was largely based on a consideration of the scope of the effective remedy provisions in the Dublin III Regulation, and the applicants’ argument that individually enforceable rights existed in relation to Article 34 requests (which are part of the administrative cooperation measures of the Regulation). The judgment placed emphasis on the CJEU judgment in Case C-63/15 Ghezelbash, which found that “an asylum seeker is entitled to plead […..] the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Regulation.”   The Court of Appeal accepted that the Dublin III Regulation introduced and enhanced the rights of individual asylum seekers in relation to the making of transfer decisions under the Regulation. 

However, the Court found that the concept of an effective remedy under Article 27(1) of the Dublin III Regulation could not be extended to the point that it could be used to challenge a transfer decision on the basis that the Annex V form was incorrectly completed. Peart J stated “Where an applicant has an entitlement to an effective remedy, what is envisaged is a remedy to provide him with, or otherwise protect and vindicate some right or entitlement of which he has been wrongfully deprived or denied. It does not extend to a right to rummage around in the undergrowth of paper which has been generated during the asylum process, including the determination of the correct member state responsible under the Regulation, to see if some “T” has not been crossed or some “I” has not been dotted, and then cry foul when some infelicity is discovered which has no bearing upon any individual right or entitlement of the applicant which the effective remedy is there to protect.” 

With regard to the data protection issues raised by the applicants, the Court of Appeal noted that the applicants’ fingerprints were lawfully taken by the Irish authorities under section 9A of the Refugee Act 1996. The Irish authorities furnished these fingerprints to the UK authorities, who replied that they matched fingerprints held on their records. The Court of Appeal found that the provision of the fingerprints by the Irish authorities to the UK was in pursuit of the legitimate interest of providing information to ascertain which member state was responsible for the applicants’ applications, in accordance with section 2A of the Data Protection Act 1988. 

The Court also commented that had the personal data (i.e. the fingerprints) been erroneous in some way, a remedy was available in the Regulation for the applicants to request the data to be erased or amended.

The applicants had also argued that both the request and the UK’s response to it breached the obligation under the Data Protection Directive (95/46/EC) to avoid unlawful or unauthorised access or disclosure. The applicants argued that the information furnished by the UK in response was provided in breach of Article 34 because there was no evidence that the information gathered by the UK came from a Eurodac enquiry.  The Court of Appeal found, however, that the UK did not provide fingerprints in response to the request it received from ORAC, but rather simply confirmed that the lawfully obtained fingerprints which had been submitted to the UK authorities matched fingerprints on their own records. Therefore the UK could not have provided fingerprints in breach of Article 34 – they simply did not transmit any fingerprints in their reply at all. 

There was one dissenting judgment. The dissenting judgment considered that there was insufficient clarity about, in particular, the scope of Articles 34(4) and 34(9) of the Regulation to resolve the issues in the case without making an Article 267 reference to the Court of Justice of the European Union. The dissenting judge considered that the question of whether Article 34(4) gives rise to individually enforceable legal rights remained open. The dissenting judge also did not consider it was clear, even if the requirements of Article 34 (4) were not met, whether or not Article 34(9) could be invoked to erase otherwise accurate information obtained from the UK authorities.

Decision:

Appeal against refusal of judicial review of decision of the Refugee Appeals Tribunal dismissed.

Principles:

The Dublin III Regulation introduced and enhanced the rights of individual asylum seekers in relation to the making of transfer decisions under the Regulation.  However, the concept of an effective remedy under Article 27(1) of the Dublin III Regulation could not be extended to the point that it could be used to challenge a transfer decision on the basis that the Annex V form was incorrectly completed. The provision of the appellants’ fingerprints by the Irish authorities to the UK was in pursuit of the legitimate interest of providing information to ascertain which member state was responsible for their asylum applications, in accordance with section 2A of the Data Protection Act 1988.


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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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