Facts: The applicants were a family of Pakistani nationals who had originally travelled to the United Kingdom on a visa, but subsequently came to Ireland and claimed asylum. In accordance with the Dublin III Regulation, a first instance decision was made by the Refugee Applications Commissioner that the United Kingdom was the responsible Member State and it was therefore proposed to transfer the applicants to the United Kingdom. The applicants appealed this decision to the Refugee Appeals Tribunal, in which they sought to invoke the Article 17 discretion, and submitted that the Tribunal was the competent authority with jurisdiction to exercise that discretion. The Tribunal rejected the contention that it had the power to exercise the Article 17 discretion, and this decision was upheld by the High Court ([2017] IEHC 490 and [2017] IEHC 613). However, on appeal, the Court of Appeal ([2019] IECA 183) disagreed and held that the Tribunal did have jurisdiction to exercise the Article 17 discretion. The State respondents were subsequently granted leave to appeal from the Court of Appeal to the Supreme Court.
Decision: The Supreme Court held that the Article 17 discretion had not been devolved onto to the statutory bodies with responsibility for examining refugee applications and appeals, but rather was exercisable only by the Minister for Justice. The Supreme Court noted that the purpose of Dublin III is to find and to transfer responsibility to the country responsible for deciding an application for international protection, in a process that is designed to be transparent, swift and based on mutual trust with which applicants for international protection are required to cooperate. It was held that in general, it is not necessary to for there to be a specific consideration of potential or possible rights. Charleton J stated that if rights-based arguments are raised in the context of a proposed Dublin transfer, and there is a factual basis which engages such rights, consideration should be given to those rights, but commented that this would be a rare exception.
