The applicant applied for asylum having previously applied in the UK. The Minister made a transfer order against the applicant pursuant to Article 7 of the Refugee Act 1996 (Section 22) Order 2003 to allow the applicant be transferred to the UK. The applicant averred that she would be a suicide risk if the transfer went ahead. She sought to compel the Minister, by way of judicial review, to consider the new medical evidence that indicated a real risk of suicide. The Minister contended that he had no discretion not to implement the transfer order, to revoke it, or to consider the applicant’s application for asylum.
The Court granted declarations that the Minister had a discretion not to implement a transfer order made under Article 7(1) of the Refugee Act 1996 (Section 22) Order 2003 and that the Minister was obliged, as a matter of fair procedures, to determine the applicant’s request not to implement the transfer order and granted an injunction restraining the transfer. The Court stated that the scheme of Council Regulation (EC) No. 343/2003 was to impose on the responsible Member State an obligation to readmit the applicant to its territory and a right, but not an obligation, on the requesting Member State to transfer the applicant. The Court also stated that the Minister was obliged to uphold the applicant’s right to life as guaranteed by Article 40.3.2 of the Constitution and that this necessitated an implicit power not to implement a transfer order where the protection of the life of the applicant required.
