Court allows certiorari to quash Dublin transfer order where prior asylum rejection precludes re-examination.

THE SUPREME COURT

81/03

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

BETWEEN

D.Y.

APPLICANT / RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONSCOMMISSIONER AND JAMES

NICHOLSON, MEMBER OF THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS / APPELLANTS

JUDGMENT delivered the 1st day of December, 2003 by Keane CJ.

Introduction

1. The facts in this case are not in dispute and may be summarised as follows. The applicant is a Cameroonian national and a law

graduate of Yaounde University. In 1998, he left Cameroon and travelled to Germany. There he sought asylum as a refugee on the

ground that he had been forced to leave Cameroon because of what he said was persecution arising from political activities which had

the objective of replacing, in a legitimate manner, the government of Cameroon. His application for asylum was refused by the German

authorities and he made a further application to them which was refused on the 6th September, 2000. Thereafter he left Germany and

came to Ireland on the 3rd November, 2000. On the 6th November he applied for a declaration of refugee status in this country and

stated in the questionnaire form completed by him that he had applied unsuccessfully for refugee status in Germany. He was informed

by the second named respondent (hereafter “the Commissioner”) on the 11th May, 2001 that his application was one which should

properly be examined by Germany in accordance with the provisions of Article 8 of the Dublin Convention. He was also informed that

the appropriate authorities in Germany had agreed to his return under that Convention for the purpose of examining his asylum

application. The applicant appealed from that decision and, on the 26th June, 2001, the third named respondent (hereafter “the

Appeals Tribunal”) dismissed the appeal and affirmed the decision of the Commissioner. The request by the Commissioner to the

German authorities was dated the 19th January, 2001 and was in the following terms:

“I refer to an application for asylum lodged in this State by [the applicant] on 06 November 2000.Pursuant to Article 6(1)

of the Dublin Convention (Implementation) Order 2000 and Article 11 of the Dublin Convention, I hereby call upon you to

take charge of the above named applicant and admit him to your territory for the purposes of examining his case for

asylum in accordance with Article 10(1)(e) of the Dublin Convention. I enclose the standard form for determining the

State responsible for examining an application for asylum.”

2. The response from the German authorities was dated the 8th May, 2001 and was in the following terms:

“Your request for takeover from 19.01.2001 is met according to Article 8 Dublin Agreement. The petitioner mentioned

above will be accepted by the Federal Republic of Germany. Information concerning the modalities of transfer is enclosed.”

3. The applicant was notified of the failure of his appeal by the Appeals Tribunal on the 2nd July, 2001. The Commissioner then

transmitted the file in the matter to the first named respondent (hereafter “the Minister”) for consideration by him. On the 16th July,

2002, the applicant applied to the High Court for leave to apply by way of judicial review for a number of reliefs, including orders of

certiorari in respect of the decisions of the Commissioner and the Appeals Tribunal and an injunction restraining the Minister from

deporting or otherwise removing or transferring the applicant pending the determination of the proceedings. When this application

came on for hearing in the High Court before Finlay-Geoghegan J., the Minister, Commissioner and Appeals Tribunal were represented.

On the 18th December, 2002, the learned High Court judge delivered a written judgment in which she found that the applicant was

entitled to orders of certiorari in respect of the decisions of the Commissioner and the Appeals Tribunal and she ordered that the

applicant’s appeal should be remitted to the Appeals Tribunal to be decided in accordance with law. Pursuant to s. 5(3)(a) of the

Illegal Immigrants (Trafficking) Act, 2000, the High Court granted leave to appeal and certified that its decision involved points of law

of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. The

points of law certified were

“(i) Whether or not Article 10(1)(e) of the Dublin Convention has been incorporated into the law of the State.

(ii) Whether or not [the Commissioner and the Appeals Tribunal] had jurisdiction pursuant to the Dublin Convention

(Implementation) Order, 2000 (SI No. 343 of 2000) to make or uphold a decision that Germany be requested to take back

the applicant pursuant to Article 10(1)(e) of the Dublin Convention.”

The Regulatory Framework

4. The Dublin Convention, to which Ireland is a party, is a convention intended to determine the state responsible for examining

applications for asylum lodged in one or more of the member states of the European Communities. Its provisions do not form part of

the domestic law of the state except to the extent to which they have been given the force of law by the Oireachtas. Section 22 of

the Refugee Act, 1996 (hereafter “the 1996 Act”) enabled the Minister to make orders for the purpose of giving effect to the

Convention. In exercise of his powers under that section, he made the Dublin Convention (Implementation) Order, 2000 (S.I. No. 343

of 2000) (hereafter “the Order”). It will be necessary to refer to the provisions of s. 22 of the 1996 Act and of the Order in more

detail at a later stage. Initially, however, the general scheme of the Convention and the articles which are particularly relevant to

these proceedings must first be considered. The preamble recites that the contracting states were aware of the need to take

measures to avoid situations arising where applicants for asylum under the Geneva Convention were left in doubt for too long as

regards the likely outcome of their applications. It also refers to their concern that all such applicants should be guaranteed that their

applications would be examined by one of the member states and not referred successively from one state to another without any of

the states acknowledging itself to be competent to examine the application for asylum.

5. Article 3 of the Convention then provides that the member states undertake to examine the application of any alien (i.e. someone

other than a national of a member state) who applies at the border or in their territory to any of the states for asylum. Article 3.2

provides that

“That application shall be examined by a Single Member State, which shall be determined in accordance with the criteria

defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear.”

6. Article 3.3 provides that the application is then to be examined by that state “in accordance with its national laws and its

international obligations”. These are the critical provisions of the convention. They require any application for asylum in any of the

member states to be examined by one member state, and one member state alone. The criteria for identifying the state in question

are then set out in Articles 4 to 8.

7. We need not concern ourselves with Articles 4, 5, 6 and 7 which have no application in the present case. They apply inter alia

where the members of the family of an applicant for asylum are already legally resident in a member state, where he is in possession

of one or more valid residence permits or visas, or where he has irregularly crossed the border into a member state having come from

a non-member state.

8. Article 8 provides

“Where no Member State responsible for examining the application for asylum can be designated on the basis of the other

criteria listed in this convention, the first Member State with which the application for asylum is lodged shall be

responsible for examining it.”

9. It is accepted that, in this case, the responsible state within the meaning of Article 8 was Germany. While Article 3.4 and Article 9

provide in specified circumstances for the examination of an application for asylum by a state other than the responsible state, that

did not arise in this case.

10. The Convention contains a number of provisions setting out the obligations of the responsible state in circumstances where a

person who has applied to that state for asylum subsequently enters another member state. These provisions, depending on the

particular circumstances involved, oblige the responsible state either to “take charge” of a person who has applied to them for asylum

and has subsequently applied for asylum in another member state or to “take back” such a person who is in another state and whose

application to the responsible state is either under examination in that state, has been withdrawn or has been rejected. Before setting

out the relevant provisions, the definition of “applicant for asylum” contained in Article 1.1(c) should be borne in mind, i.e.

“An alien who has made an application for asylum in respect of which a final decision has not yet been taken.”

11. It is also necessary to bear in mind the definition in Article 1.1(d) of “examination of an application for asylum”, i.e.

“All the measures for examination, decisions or rulings given by the competent authorities on an application for asylum,

except for procedures to determine the State responsible for examining the application for asylum pursuant to this

Convention.”

12. The first of the relevant provisions is Article 3(7) which provides that

“An applicant for asylum who is present in another Member State and there lodges an application for asylum after

withdrawing his or her application during the process of determining the State responsible shall be taken back, under the

conditions laid down in Article 13, by the Member State with which that application for asylum was lodged, with a view to

completing the process of determining the State responsible for examining the application for asylum. [Emphasis added]

This obligation shall cease to apply if the applicant for asylum has since left the territory of the Member States for a

period of at least three months or has obtained from a Member State a residence permit valid for more than three

months.”

13. In the light of the definition in Article 1.1(c), this provision would appear to apply only to a person who has made an application

for asylum in one member state which has not been finally determined and, who then enters another member state and lodges with it

an application for asylum after withdrawing the first application. Such a person is to be taken back to the member state with which

the first application for asylum was lodged, with a view to completing the process of determining the state responsible for examining

the application for asylum. It had no application in the present case, since the application for asylum in Germany was not withdrawn

by the applicant while he was present in Ireland: both the applications he had made in Germany had been determined before he

arrived in Ireland. The next relevant article is Article 10 which provides as follows:

“1. The Member State responsible for examining an application for asylum according to the criteria set out in this

convention shall be obliged to

(a) take charge under the conditions laid down in Article 11 of an applicant who has lodged an application for asylum in a

different Member State.

(b) complete the examination of the application for asylum.

(c) re-admit or take back under the conditions laid down in Article 13 an applicant whose application is under examination

and who is irregularly in another Member State.

(d) take back, under the conditions laid down in Article 13, an applicant who has withdrawn the application under

examination and lodged an application in another Member State.

(e) take back, under the conditions laid down in Article 13, an alien whose application it has rejected and who is illegally

in another Member State.

[Emphasis added]

2. If a Member State issues to the applicant a residence permit valid for more than three months, the obligations specified

in paragraph 1, points (a) to (e) shall be transferred to that Member State.

3. The obligation specified in paragraph 1, points (a) to (d) shall cease to apply if the alien concerned has left the

territory of the Member State for a period of at least three months.

4. The obligations specified in paragraph 1, points (d) and (e) shall cease to apply if the State responsible for examining

the application for asylum, following the withdrawal or rejection of the application, takes and enforces the necessary

measures for the alien to return to his country of origin or to another country which he may lawfully enter.”

14. The distinction between the obligations of a state under Article 10.1(a) and (c) should be noted. If the “examination” of the

application for asylum in the responsible state has already begun, and the applicant is irregularly in another member state, the

obligation on the responsible state is to “take back” the applicant. Where, however, the application has been lodged with the

responsible state but the examination has not begun and he has lodged an application in another member state, the obligation of the

responsible state is, under Article 10.1(a) and b to “take charge” of the applicant and complete the examination of his application

for asylum in the responsible state. Where he has withdrawn the application in the responsible state and lodged an application in

another member state, the obligation under Article 10.1(d) is to “take back” the applicant. Where the application in the responsible

state has been rejected and he is illegally in another member state, the obligation again on the responsible state is to “take back”

the applicant.

15. It is clear that Article 10.1(a), (b), (c) and (d) were not applicable in the present case. While two applications for asylum had

already been made by the applicant in Germany, they had both been examined and rejected. Accordingly, the obligation, if any, on

Germany as the responsible state was to “take back” the applicant pursuant to Article 10.1(e). The applicable procedures were,

accordingly, those laid down in Article 13.1 as follows:

“An applicant for asylum shall be taken back in the cases provided for in Article 3(7) and in Article 10 as follows:

(a) Its request for the applicant to be taken back must provide indications enabling the State with which the request was

lodged to ascertain that it is responsible in accordance with Article 3(7) and with Article 10;

(b) The State called upon to take back the applicant shall give an answer to the request within eight days of the matter

being referred to it. Should it acknowledge responsibility, it shall then take back the applicant for asylum as quickly as

possible and at the latest one month after it agrees to do so.”

16. The procedures laid down in Article 11, where the obligation on the responsible state is to “take charge” of the applicant under

Article 10.1(a) and (d) are significantly different. In that case, the responsible state has a period of three months within which to

decide whether it accepts the request.

17. It can, I think, be presumed that the Convention has prescribed different procedures where the obligation on the responsible

state is to “take charge” of an applicant and complete the examination of his application and the obligation to “take back” the

applicant under Article 1(c), (d) and (e) because, in the latter set of circumstances, the responsible state will not be embarking de

novo on an examination of the application for asylum and, depending on the applicable laws of the state concerned and the stage

which has been reached under the procedures mandated by the Geneva Convention, may be solely concerned with questions as to

whether the applicant should be deported or allowed to remain in the responsible state, e.g. for humanitarian reasons.

18. The provisions of s. 22 of the 1996 Act and the Order must next be considered.

19. Section 22(1) provides that

“The Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of giving effect

to the Dublin Convention.”

20. Subsection (2) so far as relevant, provides that

“Without prejudice to the generality of ss. (1), an order under this section may –

(a) Specify the circumstances and procedure by reference to which an application for asylum –

(i) Shall be examined in the State,

(ii) Shall be transferred to a Convention country for examination, or

(iii) Shall be accepted for examination in the State pursuant to a request made by the Convention country in which

the application for asylum was first lodged,

(b) Provide for an appeal against the determination to transfer an application for asylum to a Convention country and for

the procedure in relation to such an appeal,

(c) Require that an application for asylum shall not be investigated by the Commissioner until he or she has decided

whether a Convention country is responsible for examining the application,

(d) Require that an application for asylum which is being investigated by the Commissioner shall be transferred to a

Convention country for examination,

(e) Provide that where an application has been transferred to a Convention country for examination the person concerned

shall go to that Convention country …”

21. Subsection (8) provides that

“where an application has been transferred to a Convention country for examination under ss. (2), the application shall be

deemed to be withdrawn.”

22. Article 3 of the Order provides that

“(1) Where an application is made under s. 8 of the Act, the Commissioner shall determine whether the application –

(a) Should in accordance with the provisions of Article 3(7) of the Dublin Convention be transferred to a Convention

country for examination,

(b) Should in accordance with the provisions of Article 10(1)(d) of the Dublin Convention be transferred to a Convention

country for examination,

(c) Should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the order in which

they appear therein) be transferred to a Convention country for examination, or

(d) Should, in accordance with the criteria aforesaid or otherwise, be examined in the State.”

23. Section 8 of the 1996 Act enables a person arriving at the frontiers of the state to apply to the Minister for a declaration that he

is a refugee and subsequent provisions of the Act prescribe the procedures under which the application is to be dealt with by the

Commissioner and the Appeals Tribunal.

24. It should be noted that the Commissioner is specifically empowered under Article 3(1)(b) of the Order to transfer an application

under s. 8 to the responsible state in accordance with Article 10(1)(d) of the Convention, i.e. where the applicant has withdrawn an

application under examination in the responsible state and applied in this country for asylum. As already noted, however, Article 10(1)

(d) of the Convention was not applicable in the present case, nor was Article 3(7). The issue in the present case, accordingly, is to

whether the Commissioner was entitled to determine that, in accordance with the criteria set out in Articles 4 to 8 of the Convention,

the application under s. 8 should be transferred to another Convention country, i.e. Germany, for examination.

25. The provisions of Article 6(1) of the Order are also relevant. They provide that

“Where the Commissioner makes a determination under Article 3 that an applicant should be transferred to a Convention

country, he or she shall, as soon as may be –

(a) cause notice in writing of the determination and of the reasons for it to be given to the applicant, and

(b) Where the country has not already indicated its willingness to admit the applicant to its territory, request the country

to admit the applicant to its territory.”

26. Subsection (3) provides that

“An applicant concerned shall not be transferred to a Convention country -

(a) Before the expiry of five working days from the date of the making of such determination as aforesaid, or

(b) where notice of appeal against the determination is given, before the appeal is finally determined or withdrawn.”

27. Article 7 deals with the appeal to the Appeals Tribunal. It also provides that the Commissioner or the Appeals Tribunal, as the

case may be, are to notify the Minister of the failure of an application and ss. (11) then provides that

“On receipt of a notification under paragraph (9) or (10), the Minister shall inform the applicant, where necessary and

possible in a language that the applicant understands, of the determination or decision and the reasons therefore and the

Minister shall arrange for the removal of the applicant to the Convention country concerned.”

28. Finally, I should refer to Article 11(3). It provides that

“If, following the refusal of an application under s. 17 of the Act, the applicant concerned leaves the State and enters a

Convention country without the permission of that country, then if the State receives a request from the Convention

country to readmit the applicant to the State, the Commissioner shall reply to that request within 8 days of such receipt,

and if he or she accedes to the request, shall notify the Minister for the purpose of obtaining his or her consent (which

shall not be unreasonably withheld) to readmit the applicant as soon as may be.”

29. It is clear, and was accepted in the arguments in this court, that this provision would be applicable if the roles of Ireland and

Germany in the present case were reversed, i.e. if the applicant had made an application for asylum in this country which had been

refused and he had subsequently entered Germany illegally.

30. It should finally be pointed out that it is not clear why the draftsman in Articles 6 and 7 should have referred to a determination

by the Commissioner under Article 3 that an applicant should be transferred to a Convention country. The Commissioner is not

empowered to make any such determination under Article 3: he may simply determine that an application under s. 8 of the 1996 Act

is to be “transferred to a Convention country for examination”.

The High Court Judgment

31. Having considered this regulatory framework, the learned High Court judge concluded that Article 10(1)(e) of the Convention

imposed a separate and distinct obligation on a member state to take back an alien whose application it had rejected and who was

illegally in another member state and did not appear to envisage the transfer of an application for asylum. She also held that it was

not the provision which created the obligation on a member state to take charge of or take back a person who was at the time an

applicant for asylum in another member state, stating that such an obligation primarily arose under Article 10(1)(a) with the

consequent obligation to complete the examination of the application for asylum under Article 10(1)(b). Having referred in detail to

the provisions of s. 22 of the 1996 Act and of the Order, the trial judge said that neither s. 22 of the 1996 Act or the Order

authorised the relevant authorities in Ireland to request another member state to take back pursuant to Article 10(1)(e) a person who

had made an application for asylum in the state. In the result, she concluded that Article 10(1)(e) had not been implemented in the

state.

32. Having considered the terms of the request to Germany on the 19th January, 2001, the response to the request of the 8th May,

2001, the reasons given by the Commissioner for his decision of the 11th May, 2001 and the terms of the decision of the Appeals

Tribunal of 26th June, 2001, the trial judge concluded that the reasoning of the Appeals Tribunal, although not expressly dependent

upon Article 10(1)(e), was predicated upon what she held to be an ultra vires request made to Germany pursuant to Article 10(1)(e).

Accordingly, she granted the applicant an order of certiorari in respect of the decision of the Appeals Tribunal.

Submissions of the Parties

33. On behalf of the Minister, the Commissioner and the Appeals Tribunal, Mr. Paul O’Higgins S.C. submitted that the High Court

judgment appeared to proceed on the erroneous assumption that it was within the competence of this state to give effect in

domestic legislation to the obligations imposed by Article 10(1)(e) of the Convention on other member states. He said that it was

clearly not within the competence of the Oireachtas to give legislative effect to the obligations imposed by that provision on any

member state other than Ireland. He submitted that, in enacting Article 11(3) of the Order, the state had incorporated the obligations

of Ireland under Article 10(1)(e) in domestic law and that that was as far as implementation of that provision could be effected under

our law.

34. Mr. O’Higgins further submitted that, since the intention of the draftsman of s. 22 of the 1996 Act and the Order was clearly to

give full effect, so far as was possible, to the provisions of the Dublin Convention, Article 3(1)(c) of the Order should be construed as

empowering the Commissioner to implement Article 10.1(e) by requesting the responsible state, in this case Germany, to take back

the applicant. He further submitted that the reference in Article 3(1) to an “application” being “transferred” was not a sufficient

ground for concluding that the “taking back” of the applicant, in circumstances such as the present, was not envisaged.

35. On behalf of the applicant, Mr. Durcan S.C. submitted that the powers conferred on the Commissioner by the Order to determine

an application made to him under s. 8 of the 1996 Act were as set out in Article 3(1). All the modes of determination available to him

under that provision related to an application being transferred to a Convention country for examination or retained for examination in

the State. They made no provision for the taking back of an applicant whose application for asylum in the responsible country had

already been rejected – the situation dealt with by Article 10(1)(e) of the Convention – as distinct from transferring an application to

the responsible state where the application for asylum had been made in that country but the examination of it had not been

completed.

36. He submitted that, in the absence of any provision in the Order for the taking back, pursuant to Article 10(1)(e) of an applicant,

the obligation of the Commissioner, pursuant to the provisions of the 1996 Act, to consider the application of the applicant for asylum

continued. There could be no question in the present case of the applicant being returned to Germany so that his application for

asylum could be examined in that country: it had already been examined and the examination concluded by its rejection.

Conclusion

37. I am satisfied that it was not within the competence of the State to give effect in our domestic law to the obligations imposed on

the other member states who are parties to the Dublin Convention by Article 10 of the Convention. This state could do no more than

give effect to the obligations to which it was made subject by that article. The obligations which Ireland accepted under Article 10(1)

(e) were given statutory effect in this jurisdiction by Article 11(3) of the Order.

38. I am also satisfied that it was clearly the intention of the framers of the Convention that, in a case such as the present, where

an application for asylum made in another member state has been rejected in that state and the applicant then arrives illegally in this

state, he should be taken back to the state which has already dealt with his application. It would then be a matter for that state to

decide, in accordance with its own laws, whether the applicant should be deported to his country of origin or permitted to remain on

humanitarian grounds or on any other grounds which those laws would permit being invoked in his case.

39. In this case, however, the applicant has made an application pursuant to s. 8 of the 1996 Act for a declaration that he is a

refugee. That Act establishes a machinery for the determination of such an application by the Commissioner and for the bringing of an

appeal to the Appeals Tribunal. Article 3(1) of the Order empowers the Commissioner to transfer such an application to another

Convention country for examination in accordance with the provisions of Article 3(7) and Article 10(1)(d) of the Convention. It is clear

that those provisions were not applicable in the present case. Article 3(1)(c) also enables him to transfer such an application to

another Convention country for examination in accordance with the criteria set out in Articles 4 to 8 of the Convention. However,

while under Article 8 of the Convention, Germany was the country responsible for examining the application in the present case, that

provision can have no effect where the responsible state has already completed its examination of the application and it has been

rejected. In such a case, there can be no question of the application being transferred to the responsible state for examination, since

that examination has already taken place.

40. It would no doubt have been possible for the Order to have provided for an appropriate form of determination by the

Commissioner, in a case such as the present, which would have enabled the Minister to arrange for the removal of the applicant to

the Convention country concerned. The Order contains no such provisions and I am satisfied that, in their absence, the Commissioner

was obliged to proceed with the determination of the application under s. 8 in this case on its merits. It follows that the applicant

was entitled to the order of certiorari granted in the High Court, although not for the precise reasons given in the judgment under

appeal.

41. In the course of her judgment, the learned High Court judge referred to the unreported judgment of Smyth J. in Demeter & Ors. –

v- The Minister for Justice (judgment delivered 26th July, 2002). That was also a case in which an application for asylum had been

made in this country by an alien who had previously made an application in another Convention country (Belgium) which had been

refused. While a challenge to the validity of a determination by the Commissioner that the application should be transferred to Belgium

pursuant to Article 10(1)(e) of the Convention failed, it does not appear that the arguments on behalf of the applicant in the present

case were relied on in that case.

42. I would dismiss the appeal and affirm the order of the High Court.