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U v Refugee Appeals Tribunal

Applicant/Plaintiff: U
Respondent/Defendant: Refugee Appeals Tribunal
Citation/s: [2017] IEHC 613
Nature of Proceedings: Judicial Review
Court/s: High Court
Judgment Date/s: 26 June 2017
Judge: O’Regan M.
Category:Refugee
Keywords:Asylum application (Examination of an); Dublin Regulation; Transfer Order;
Country of Origin: Pakistan
Geographical Focus:Other

Facts:

The applicants were a family of Pakistani nationals comprising a mother and her three children. They were granted visas to travel to the United Kingdom to allow them join their husband/father, where they resided between May 2014 and June 2015. They arrived in Ireland on 5 June 2015 and applied for asylum alleging a fear of persecution in Pakistan. It was common case that no asylum application had been made by them whilst in the UK. 

During the course of the examination of the applicants’ file under Dublin III the applicants requested that the discretion provided by Article 17 of Dublin III be exercised so as to enable their application to be maintained within Ireland rather than returning to the United Kingdom. The first named applicant gave evidence that she was fearful of her husband finding her if she returned to the United Kingdom which would not be in the children’s best interest as the children had witnessed domestic violence by the husband and that her eldest son was also physically abused by her husband.On 29 April 2016 the Office of the Refugee Applications Commissioner made a decision that the applicants’ asylum applications should be transferred to the United Kingdom pursuant to the Dublin III Regulation. That decision was affirmed by the Refugee Appeals Tribunal by decision dated 24 January 2017.

In a judgment delivered on 26 June 2017 ([2017] IEHC 490) O’Regan J held that the Minister for Justice was entitled to exercise the discretion provided by Article 17 of the Dublin III Regulation, and rejected the applicants’ complaint that there was not an adequate system in respect of the application of Article 17 of the Dublin III Regulation.The court subsequently heard further argument in respect of the outstanding issues raised by the applicants, namely whether the decision to transfer their applications to the United Kingdom were in breach of Article 8 of the European Convention on Human Rights and/or the best interests of the child. 

Reasoning:
O’Regan J noted that the height of applicants’ argument in terms of the jurisprudence were the UK Court of Appeal decisions in R (CK & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 166 and Secretary of State for the Home Department v ZAT [2016] EWCA Civ 810  where it was held that an especially compelling case under Article 8 would have to be demonstrated, and accordingly in the circumstances of the instant matter held there would be no utility in returning the matter to the Tribunal for consideration as on the applicants’ own admission the height of the Article 8 rights sought to be protected was that of the children attending school in Ireland.

Insofar as the applicant argued that the best interests of the children should be a paramount consideration, O’Regan J noted that the respondent did not disagree with this but rather stated that same should not be considered in isolation but rather the entirety of Dublin III should be reviewed including the recitals to the effect that it is a primary purpose of Dublin III that families would not be separated and the duty of cooperation between Member States in this regard and therefore it was suggested that a rebuttable presumption arose that the interest of the children would be served in examining their case together with the parent of family member, as circumstances dictate. The respondent also pointed to the fact that there were no submissions in the appeal to the Tribunal relative to the best interests of the children, no request was made that the children be interviewed, that there was nothing to suggest that their best interests would not be served by staying with their mother, and no argument that the best interest of the children would be in jeopardy (save if discovered by the father). In the circumstances, the court rejected the applicants’ submission that the best interests of the children were not properly considered.

Decision:

Application for judicial review refused.

Principles:

In order to prevent the execution of a transfer order on Article 8 grounds, an especially compelling case under Article 8 would have to be demonstrated.


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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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