Facts: This case concerns the lawfulness of the designation of the United Kingdom as a safe third country under section 72A of the International Protection Act 2015.
The two applicants, A and B, are Iraqi and Nigerian and separately applied for international protection in Ireland. A biometric data request was sent to the UK under the 2014 UK/Ireland Memorandum of Understanding (MoU), which confirmed their connection to the UK. The applicants’ claims were therefore found to be inadmissible under section 21 of the International Protection Act 2015 and they were issued with Return Orders under section 51A of the 2015 Act. In the High Court, the applicants sought judicial review of, among other things, the inadmissibility decision and the return decision. A further challenge was made as to the legality of data sharing arrangements with the UK.
Reasoning:
First, on the legal framework to designate a safe third country, Phelan J. considered the Asylum Procedures Directive 2005/85/EC, which Ireland has opted-in to. Article 27 of that Directive permits Member States to assign safe third countries but does not require them to do so. Where Member States do assign them, this process is nonetheless subject to conditions set out under Article 27. Ireland implements the safe third country provisions in section 72A of the International Protection Act 2015, as amended.
At EU level, Article 27 was replaced by Article 38 with the recast to the Asylum Procedures Directive 2013/32/EU. Ireland, however, did not opt into this recast. Article 38 is identical to Article 27 but added an extra condition that there can be no risk of serious harm in the third country. Ireland does not have this additional condition in domestic legislation on safe third countries.
Phelan J. then turned to the Dublin III Regulation, which Ireland has opted into. Article 3(1) contains a right to make an application in a territory of a Member State and Article 3(3) provides that any Member State shall retain the right to send an application to a safe third country, subject to the rules and safeguards of the recast Asylum Procedures Directive 2013/32/EU. It was held that because the Dublin III Regulation refers to the recast Directive, which contains an additional condition of assessing serious risk when designating safe third countries, Ireland must also apply this additional condition (cf. MS C-616/19). Phelan J. dismissed the respondent’s argument that the Dublin III Regulation was not relevant to the cases, stating that Article 3(1) contains a right to asylum on the territory of a Member State and as such, the Regulation is of relevance.
In assessing the gap between recast Asylum Procedures Directive and the International Protection Act 2015, Phelan J held that section 72A(2) and section 21 combined with section 50A of the 2015 Act, do not provide for the full extent of safeguards of Article 38 of the recast Procedures Directive. Indeed, they specifically exclude consideration of a transfer to a country where there may be serious and individual threat to a civilian’s life or person by reason of indiscrimination violence in situations of international or internal armed conflict. Thus, the designation of the UK as a safe third country was considered unlawful and ultra vires the powers of the Minister.
Second, regarding the requirement to regularly review the designation of a country as a safe third country, Phelan J. refrained from declaring how frequently this review should occur. Nonetheless, she highlighted how under the Asylum Procedures Directive, Member States must be ‘satisfied’ that the requirements for designation as a safe third country are met. Phelan J. held that ‘satisfied’ is a continuing obligation and that this is not present in the current Irish legislation and the methodology for review used by the Minister was therefore insufficient.
A third issue concerned the review of applicant’s rights. Where a recommendation of inadmissibility is made by the IPO and this has been affirmed by the IPAT, the Minister must then issue a Return Order under section 51A. Phelan J. held that, while there may be some consideration of rights under Article 3 ECHR/Article 4 of the Charter of Fundamental Rights in this process, there is no provision for a broader rights analysis at any stage of it. She found that lack of clarity as to who conducts the rights analysis and when, was unsatisfactory and that the narrow scope of rights analysed was not consistent with fundamental rights protections afforded under Irish and EU law. It was held that section 51A(1) did not provide the Minister with residual discretion to conduct a broader rights scrutiny. This was incompatible with EU law obligations and rendered the Safe Third Country Designation system unlawful.
On data protection rights in the context of exchanging personal data with the UK and the applicability of GDPR, Phelan J. delimited her analysis to whether any breach of data protection rights would render section 72 of the 2015 Act and or the 2020 Designation Order outside the legal powers of the Procedures Directive or the State’s CEAS obligations. She found that this was not the case. It was held that there is remedy for data protection breaches under the Data Protection Act 2018, which had not been pursued.
Decision: Phelan J. issued a declaration that the designation of the United Kingdom and Great Britain as a safe third country pursuant to the 2020 Designation Order is contrary to Ireland’s obligations under EU law. Thus, the decisions in these cases were quashed.
