NVU v Refugee Appeals Tribunal

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NVU v Refugee Appeals Tribunal
Respondent/Defendant:Refugee Appeals Tribunal
Court/s:Court of Appeal
Citation/s:[2019] IECA 183
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:26 Jun 2019
Judge:Baker M
Category:Refugee Law
Keywords:Asylum Applicant (Secondary Movement of), Dublin Regulation, Transfer Order
Country of Origin:Pakistan


This appeal concerned article 17 of the Dublin III Regulation which vests in Member States the discretion to deal with an application for refugee status on humanitarian or compassionate grounds where Dublin III would otherwise have resulted in that application being transferred to another Member State. The issue concerned the identity of the appropriate national authority to exercise the article 17 discretion – whether it was the national authorities with responsibility for asylum decision-making, including Dublin appeals, or whether it was a sovereign power of the State exercisable only by the Minister for Justice. The High Court held that it was a sovereign power exercisable only by the Minister for Justice unless that power had been expressly delegated to the national asylum authorities, and that no such delegation had been provided for in Irish law.


The Court of Appeal disagreed, and overturned the decision of the High Court. Baker J in the Court of Appeal set out the history of the Dublin system, including the need for a derogation arising from the migrant crisis in Greece in 2013/2014, and the previous reference from the High Court to the CJEU in MA v International Protection Appeals Tribunal (Case C‑661/17) EU:C:2019:53 in which the CJEU effectively held it was a matter for the Member States to determine which national authority was responsible for exercising the article 17 discretion. Baker J interpreted the national regulations (the European Union (Dublin System) Regulations SI No.525 of 2014) in the light of the CJEU decision in CK v Republika Slovenija (Case C-578/16 PPU) ECLI:EU:C:2017:127 and concluded that Irish law designated the national asylum authorities as having jurisdiction to exercise the article 17 discretion, and did not reserve the exercise of that sovereign discretion to the Minister for Justice.

Decision: Appeal allowed.

Principles:The sovereign discretion in article 17 is exercisable in Irish law by the national asylum authorities and is not reserved to the Minister for Justice.
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