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Pakistani mother wins significant appeal in bid for refugee status

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Author- Mary Carolan

A Pakistani woman and her three children who came here from the UK after leaving her allegedly violent husband have won a significant legal challenge over a referral to the UK of their application for refugee status.

Up to 150 other cases are potentially affected by the Court of Appeal judgment. It ruled on Wednesday the Refugee Appeals Tribunal (Rat) had wrongly concluded it had no power to exercise the discretion afforded to EU member states under the Dublin III system to consider such applications on compassionate or humanitarian grounds.

The Rat, now the International Protection Appeals Tribunal (Ipat) and International Protection Office (IPO), can exercise the discretionary power provided for in Article 17 of the Dublin III regulations, Ms Justice Marie Baker held when giving the three-judge court’s decision. The Ipat will now have to reconsider the matter in line with the court’s findings.

The Minister for Justice and the State had until 2015 maintained the discretionary power vested in the Office of the Refugee Applications Commissioner but subsequently altered their position to argue the discretionary power was vested only in the Minister.

The mother and children, represented by Eamonn Dornan BL, instructed by solicitor Brian Burns, appealed after the High Court upheld the Rat decision on discretion.

On Wednesday, the Court of Appeal allowed their core appeal and ruled the High Court erred in upholding the Rat decision.

While agreeing with a follow-on High Court decision that private life rights under Article 8 of the European Convention on Human Rights were not engaged in this case because they had not been asserted before the Rat, Ms Justice Baker disagreed with the High Court’s observation there is as yet no EU decision that Dublin III can be “bypassed” by Article 8 rights.

The implementation of Dublin III must be done in a manner that accords with the European Convention on Human Rights and the EU Charter of Fundamental Rights, but an appropriate case would have to determine those issues, she stressed.

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