The applicant applied for asylum having previously applied in Italy. The Refugee Applications Commissioner determined that Italy was the Member State responsible for examining his claim under Article 20(1)(c) of Council Regulation 343/2002. The applicant married a German national and withdrew his application for asylum. The applicant was subsequently detained on foot of the transfer order and the applicant sought an investigation pursuant to Article 40(4) of the Constitution into the legality of his detention. The Minister contended that the enforcement of the transfer order was not separable from the transfer order itself and that once the order had been valid, its enforcement could not be invalid. The applicant contended that once he had withdrawn his asylum application, the transfer order ceased to have effect and that therefore his detention was unlawful.
The Court was satisfied that the application in Ireland was withdrawn by virtue of the provisions of Section 22(8) of the Refugee Act 1996, that the applicant’s letters of withdrawal had the effect of causing the withdrawal of all outstanding applications for asylum in any Member State and that Italy therefore had no “take back” responsibility. The Court held that the order and its enforcement were entirely separable and that the detention could not therefore retain validity.
