The High Court has refused an injunction preventing the deportation of a Somalian man on Thursday to France.
The man failed in an application to prevent his return to the EU country he was last in, France, and where he was refused international protection. He had spent four years in Germany where he was also refused protection.
He arrived here in August 2022 and sought protection on the basis that he was fleeing the Somalian Islamic militant group Al Shabbab, who killed his father and two brothers.
When protection was refused, he brought an appeal claiming if returned to France, where he was homeless, he would face poor reception conditions for asylum seekers and that this was a breach of his European Convention rights. An appeals tribunal found country of origin information indicated France was a safe country and rejected his appeal.
He then brought a High Court judicial review challenge to that decision and also sought an injunction preventing his deportation to France which had agreed to accept him and deal with his protection application.
That was refused by Ms Justice Niamh Hyland just before Christmas.
Last Friday, the judge was told the judicial review was being withdrawn, and new proceedings were being issued, and an injunction was also sought stopping his deportation which was scheduled for Thursday, February 1st, and for which he had been requested to turn up at Dublin Airport at 6.30am.
New challenge
At the centre of his new challenge was a claim that no decision had been made by the Minister for Justice in relation to an EU regulation which governs the return of international protection applicants to the country they first arrived in.
Known as the Dublin III Regulation, Article 17 relates to established family reunification rights of protection applicants. It says a country in which the applicant arrived can either consider the protection application itself under Article 17 or request another country in which the applicant has also arrived to take him back and deal with the application.
Eamonn Dornan BL, for the man, said the transfer cannot occur without a decision on his client’s application being first made under Article 17 of the Dublin III Regulation.
He also argued the failure to provide clarity on the Article 17 process has led to confusion amongst applicants and that there was no formal application process or form for doing so.
Sarah-Jane Hillery BL, for the international protection authorities and the minister, submitted that the man is no longer an asylum seeker as his protection claim has been rejected elsewhere. Here, he was making the “epitome of an 11th-hour application”, she said.
The man can continue his judicial review challenge from France and there is a mechanism for his return to Ireland if it transpires he is successful in the case, she said. France will no longer be obliged to accept him after February 22nd.
Ms Justice Hyland said there was no challenge here to a refusal under Article 17 as no such refusal exists.
There was an application to compel the minister to make such a decision, but the judge said she cannot characterise that argument as fair or arguable given that the latest application to the minister was made just five days before the new High Court proceedings were brought.
It was also an attempt to challenge the transfer to France decision on the basis that it was outside the powers of the Dublin III regulation.
"This is a collateral attack given that the transfer decision was challenged in the previous judicial review proceedings and those proceedings were withdrawn", she said.
That argument would not meet one of the requirements for an injunction of a "fair issue to be tried", she said.
She also said that the man could have made his application in 2022.
She agreed the State will lose the right to return him to France under the Dublin Convention, whereas if he turns out to be right in his proceedings here, he will be entitled to be returned to Ireland.
