Ireland - M.A. ( a minor ) -v- The International Protection Appeals Tribunal & ors, 8 November 2017
| Country of Decision: | Ireland |
| Court name: | High Court |
| Date of decision: | 08-11-2017 |
| Citation: | [2017] IEHC 677 |
| Additional citation: | 2017 116 JR |
Keywords:
| Keywords |
|
Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
|
Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
|
Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The following questions are referred to the Court of Justice of the EU for a preliminary ruling:
(i) when dealing with transfer of a protection applicant under regulation 604/2013 to the UK, is a national decision-maker, in considering any issues arising in relation to the discretion under art. 17 and/or any issues of protection of fundamental rights in the UK, required to disregard circumstances as they stand at the time of such consideration in relation to the proposed withdrawal of the UK from the EU;
(ii) does the concept of the “determining member state” in regulation 614/2013 include the role of the member state in exercising the power recognised or conferred by art. 17 of the regulation;
(iii) do the functions of a member state under art. 6 of regulation 604/2013 include the power recognised or conferred by art. 17 of the regulation;
(iv) does the concept of an effective remedy apply to a first instance decision under art. 17 of regulation 604/2013 such that an appeal or equivalent remedy must be made available against such a decision and/or such that national legislation providing for an appellate procedure against a first instance decision under the regulation should be construed as encompassing an appeal from a decision under art. 17;
(v) does art. 20(3) of regulation 604/2013 have the effect that in the absence of any evidence to displace a presumption that it is in the best interests of a child to treat his or her situation as indissociable from that of the parents, the national decision maker is not required to consider such best interests separately from the parents as a discrete issue or as a starting point for consideration of whether the transfer should be take place.
Facts:
The case concerns three applicants, a wife, husband and child. The parents had been living in the UK on a student and dependant visa respectively and their child had been born in the UK. Following on from the closure of the college the wife attended, the applicants went to Ireland and applied for asylum in the country. The Refugee Applications Commissioner requested the UK authorities to take charge of the applicants. The applicants appealed the decision to transfer to the International Protection Appeals Tribunal, relying primarily on Article 17 of the Dublin Regulation and on the UK’s withdrawal from the European Union. This appeal was rejected by the Tribunal who held that it had no jurisdiction to exercise discretion in relation to Article 17.
Decision & reasoning:
In examining the wording of both the Dublin Regulation and respective national legislation, Humphreys J notes that it is not clear with whom the Article 17 function lies. According to domestic law a word or expression used in the regulations and also in the EU regulation should have the same meaning as in the EU regulation. Thus the allocation of responsibility under Article 17 will depend on the meaning of ‘determining Member State’. With this in mind Humphreys J states that the drafting of the domestic regulations are very unclear and there is an urgent need for clarification since the Dublin system is not functioning as envisaged by EU law. Humphreys J advises that the Minister assess the possibility of making new regulations to determine who should exercise Article 17, which would also confer on applicants the possibility to appeal a decision where Article 17 is used.
The High Court proceeds with its reasoning in referring the five questions to the CJEU and its proposed answers to the questions:
- In its examination of whether any consideration should be had to the proposed withdrawal of the UK from the EU when considering the discretion under Article 17 of the Dublin Regulation, the Court is of the opinion that when exercising any discretion under the Regulation and when considering the likely protections of the rights of persons affected, the decision maker should take into account all relevant circumstances. This would mean that the decision maker should not be prevented from taking into account the likely situation arising post-withdrawal of the UK from the EU. Thus, according to the Court, the Tribunal should have considered any risk in relation to the protection the applicants would likely receive following on from the withdrawal process.
- The Court asks whether the concept of ‘determining member state’ in the Dublin Regulation includes the member state insofar as it is exercising functions under Article 17 and according to Humphreys J, who relies on CK and Others, the concept does include the determination process under Article 17. Therefore, this would mean that the Refugee Applications Commissioner in Ireland have jurisdiction to determine Article 17 issues.
- In respect of the third question and the interplay between Article 6 of the Dublin Regulation and Article 17, in particular whether the functions conferred by Article 6 include the exercise of the discretion under Article 17, the Court, again, rules that it does.
- The Court goes onto ask the CJEU whether a first instance decision made under Article 17 encompasses the right to an effective remedy. In the Irish context there is no appeal against a decision relying on Article 17 since, according to the State, the only appeal that can be made is against a transfer decision not an Article 17 decision. According to the Court this interpretation is erroneous and in light of C.K. and Others an effective remedy should apply to any first instance decision under Article 17.
- Lastly, the Court asks whether in light of Article 20(3) the best interests of the child should be considered as indissociable or dissociable from that of the parents. According to the Court, Article 20(3) does not require the decision maker to separately consider the child’s position unless there is a reason to do otherwise. Therefore, in the absence of positive evidence to displace the presumption of indissociability, there is no requirement to consider the best interests of the child as a separate or discrete issue or as a starting point.
As a final remark the High Court request either the urgent or expedited procedure to be applied in this case given that the child is being examined for signs of autism, that the Dublin Regulation process requires expedition, that the UK withdrawal process has a deadline and that there is a backlog of asylum cases in Ireland which depend on the resolution of the Article 17 issue.
Outcome:
The High Court refers the questions to the CJEU for a preliminary ruling.
Subsequent proceedings:
The case reference before the CJEU is C-661/17. The CJEU issued a judgment on 23 January 2019; you can read the EDAL summary of the judgment here.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - C-411-10 and C-493-10, Joined cases of N.S. v United Kingdom and M.E. v Ireland |
| CJEU - C-578/16 PPU, C.K. and others |