The High Court has granted an injunction prohibiting the State from transferring an Algerian asylum seeker to Spain until his legal action here is resolved.
Ms Justice Niamh Hyland acknowledged there is “undoubtedly serious prejudice” to the State in her granting of the injunction, as the six-month time period within which Spain is obliged to accept the man will elapse next week.
Therefore, the State will be prevented from transferring the man to Spain even if he ends up being ultimately unsuccessful in his full court challenge.
However, she said, the Minister for Justice has failed to decide on the man’s request, made 18 months ago under Article 17 of the Dublin III Regulation, for his international protection application to be determined in Ireland.
To refuse the injunction would allow the Minister to benefit from her failure to make a decision and would be unfair to the applicant, the judge held.
The Dublin III Regulation provides that a person can, with exceptions, be returned to the EU member state they first enter.
Article 17 provides that an EU member state can opt to examine an international protection application even if it is not its responsibility to do so.
Here, a search on a European database found the man had irregularly crossed the border into Spain from Algeria nearly a year before he applied for international protection in Ireland.
The man says he did not claim international protection in Spain, which he left to travel to France, where he remained for several months before going to Belgium and then to Ireland by bus and ferry.
Spain agreed in June 2022 to a request from the International Protection Office (IPO) to take the man back for processing.
The man, via his lawyers BKC Solicitors, made submissions to the Minister under Article 17 arguing he would be at risk of onward refoulement from Spain and at risk of destitution.
In October 2022 he was informed the IPO had determined that Spain is responsible for his application. The International Protection Appeals Tribunal (IPAT) then affirmed this decision.
His counsel, Eamon Dornan, told the High Court an Article 17 application should be determined before a person is transferred.
In her recent judgment, Ms Justice Hyland said the Supreme Court has determined that neither the IPO or the IPAT can decide upon Article 17 applications.
She said this means a transfer decision can be made by the IPO and upheld by the tribunal but an applicant can still assert that the process under the Dublin III Regulation is unfinished due to an awaited decision from the Minister in an Article 17 request or because there is an ongoing court challenge of the Minister’s refusal to grant Article 17 relief.
The “bifurcation” of the transfer and Article 17 decisions has given rise to “some considerable difficulties” and a “large amount of litigation”, the judge noted.
As far back as 2017, she said, High Court judges have commented on the absence of a coherent system in Ireland on this issue, yet the “position has not altered”. It is “surprising” that the Minister has not identified how the two strands should operate in harmony to avoid undermining the aims of the Dublin III Regulation regarding transfers, the judge said.
She was not persuaded by the man’s claim that Spain would not respect the man’s human rights.
However, she ruled he is entitled to a decision on his application before being transferred.
The Minister’s failure to decide on his Article 17 application promptly, given she knew the transfer process was moving along and the six-month clock was running, is “unexplained”, the judge said.
The judge had “no hesitation” in permitting the man to seek a declaration, among other reliefs, that the Article 17 process remains unclear and contrary to the principle of certainty under European law.
His case is against the Minister, Ireland, the Attorney General, the chief international protection officer and the IPAT.
