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.
She endorsed criticism by other judges of the lack of clarity in Article 17 concerning both the discretionary power and how any challenge to the exercise of that power might be brought.
In the context of the UK’s status on leaving the EU, she said, until such departure actually happened, the court could not speculate whether that would oblige another member state to determine a refugee status application which would otherwise have to be decided by the UK.
Earlier, the judge noted the Pakistani woman claimed she arrived in the UK in early 2014 under a spousal visa which expired in May 2015. She and the children came here the following month when she applied for refugee status, alleging a fear of persecution if she and the children were returned to Pakistan.
She argued Ireland was the proper forum for determining their application as there was alleged risk of inhuman and degrading treatment if they had to return to the UK for such determination.
Ms Justice Baker said the Dublin III system provided that applications for refugee status were dealt with by the first EU member state of arrival but Article 17 conferred discretion on member states to themselves deal with an application for refugee status on humanitarian or compassionate grounds.
The central question in this case was what body of person in Ireland was responsible for exercise of that discretionary power, she said.
Having considered the legal submissions and authorities, she concluded the Article 17 discretion may, in a suitable case, be exercised by the determining body, now the IPO and Ipat.
That discretion was “fact sensitive” and it would not be proper for the court to outline the matters to be considered in an individual case, she said.
Some of the factors in this case identified as potentially relevant to the discretion included the complex family relationship; that the mother was receiving counselling, medication and family therapy for depression and post-traumatic stress disorder and had improved since being away from her husband, she noted. Other factors included an allegation that her eldest son had been subject to violence by his father and all the children were attending school here.