The applicant was an Afghan national who applied for asylum in the State. A Eurodac search subsequently revealed that he had previously applied for asylum in the United Kingdom and the Refugee Applications Commissioner subsequently made a decision to transfer the applicant to the United Kingdom pursuant to the Dublin III Regulation. The applicant appealed this decision to the International Protection Appeals Tribunal, which dismissed his appeal. The applicant then brought judicial review proceedings challenging the decision of the International Protection Appeals Tribunal. The High Court (O’Regan J.) granted leave on a number of grounds but refused leave on two specific issues, namely (i) whether the International Protection Appeals Tribunal was entitled to exercise the discretion conferred by Article 17 of the Dublin III Regulation (which permits a Member State to examine an application for international protection even if that Member State is not the responsible state under the Dublin III Regulation) and (ii) whether the International Protection Appeals Tribunal was entitled to have regard to the potential impact of Article 8 ECHR in deciding whether or not to set aside the transfer order. The International Protection Appeals Tribunal held that these were matters for the Minister to decide, not the Tribunal.
The applicant appealed to the Court of Appeal against the refusal to grant leave on those two issues. During the course of the appeal the court was informed that upwards of 100 cases were pending in the High Court in which these particular issues had been raised.
Hogan J. delivered the judgment of the Court of Appeal, holding that it was at least arguable in the light of the decision of the Court of Justice of the European Union in Case C-578/16 PPU CK v Republika Slovenija EU:C:2017:127 that the International Protection Appeals Tribunal was in fact required to consider exercising the Article 17 discretion. Accordingly, the Court of Appeal granted leave to seek judicial review on the following ground:
“The respondent Tribunal erred in law by ruling that it had no jurisdiction to exercise the jurisdiction conferred by Article 17(1) of the Dublin III Regulation and by failing to consider the consequences for the applicant’s mental health of physically transporting him from Ireland to the United Kingdom and all the significant and permanent consequences that might furthermore arise from such a transfer.”