Facts: The applicant, an Algerian national, applied for international protection in Ireland. It was found that he had previously been in Spain. The International Protection Office (IPO) sent a take back request to Spain under the Dublin III Regulation and Spain accepted responsibility for his application. Upon being informed of this, the applicant’s solicitors made submissions to the Minister for Justice under Article 17(1) of the Dublin III Regulation (the sovereignty clause), requesting the Minister exercise her discretion in the case and take responsibility for his application. It was submitted that he would be at risk of destitution and onward refoulement if returned to Spain. At the time of the case, the Minister had not issued a decision to the applicant under Article 17.
The applicant sought leave to pursue judicial review in the High Court on several grounds and requested an injunction to prevent his removal pending a decision under Article 17.
Reasoning: In the High Court, Hyland J. recognised the lack of clarity as regards the operation of Article 17 and recalled the plethora of Article 17 litigation in Ireland and the pending preliminary reference in the Court of Justice of the EU (C-359, AHY v Minister for Justice) on the issue.
Citing the test for leave to seek judicial review based on arguability and not likelihood of success, Hyland J. granted leave in respect of a declaration that the process for the application and determination of an Article 17(1) application remains unclear, and therefore contrary to the principle of certainty under EU law. Hyland J. further granted leave for a declaration that the Minister’s determination under Article 17 must issue concurrently with the transfer decision notice to allow the applicant to access an effective remedy for a refusal under Article 17.
On the request for an injunction, Hyland J. held that while there were no relevant human rights concerns in Spain to prevent the applicant’s transfer, the Minister’s failure to make a decision on the applicant’s Article 17 application, made more than 18 months prior meant an injunction had to be granted. She highlighted that the applicant was entitled at a minimum to a decision on his application before being transferred.
Decision: The injunction was granted and a stay was placed on the applicant’s removal. Leave was granted for a declaration that the Article 17(1) procedure in Ireland remains unclear contrary to the principle of certainty under European Union law. The applicant was entitled to a decision on Article 17 before transfer.
By the time of the substantive judicial review case ([2024] IEHC 211), the applicant had received a negative decision on his Article 17(1) application from the Minister. However, the deadline to transfer him to Spain had since passed and therefore it was determined his case would be heard in Ireland. Hyland J. therefore held the proceedings were moot.
