High Court dismisses judicial review of Dublin III transfer to France due to lack of proven risk of inhuman treatment.

APPROVED

AN ARD-CHÚIRT

THE HIGH COURT

[2025] IEHC 654

Record No. 2025/1135JR

BETWEEN/

D.S.

APPLICANT

-AND-

INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENTS

JUDGMENT of Mr. Justice Conleth Bradley delivered on 26th November 2025

INTRODUCTION

Background & Chronology

1. The Applicant is a national of Zimbabwe. He fled Zimbabwe in or around December 2022 and travelled to South Africa, Israel, Austria, Germany and then to Ireland.

2. He says that while he was in Austria, the Austrian authorities issued a take charge request to France on 10th January 2023 which was accepted by the French authorities on 10th February 2023.

3. The Applicant left Austria on 12th April 2023 coming to Ireland via Germany. He arrived in the State on 14th April 2023 and applied on that date for international protection.

4. It appears that on 3rd May 2023, a request was made by Austria to France to extend time for the Applicant’s transfer to France pursuant to Article 29(2) of Regulation (EU) No. 604/2013 (“Dublin III”), but that no response was provided by France.

5. On 17th May 2023 a take back request was issued to Austria. Also on 17th May 2023, the authorities in Austria replied rejecting the take back request, because (as set out above) the Austrian authorities had sent a take back request to France on 10th January 2023 which had been accepted by the French authorities on 10th February 2023.

6. On 24th May 2023 a take charge request issued to France pursuant to Article 12(2) or

(3) of Dublin III. France accepted this request on 24th July 2023.

7. The Applicant was interviewed pursuant to Article 5 of Dublin III on 27th September 2023 and a transfer decision was made by the International Protection Office (“the IPO”) on 16th November 2023 in relation to the Applicant.

8. By Notice of Appeal dated 22nd November 2023 the Applicant appealed this transfer

decision to the International Protection Appeals Tribunal (“the IPAT”) and submitted medical documentation and a medicolegal report dated 18th September 2023 (i.e. Dr. Giller’s first report).

9. The Applicant initially raised the following four grounds of appeal arising from the

decision of the IPO:

“(1) The IPO has erred in fact and in law in making a decision to transfer the [Applicant] to France for the purposes of processing his application for international protection;

(2) The IPO erred in fact and in law in failing to exercise the

discretion provided for under Article 17 of the EU Dublin Regulation (604/2013*) in the [Applicant]’s favour in order to process his application for international protection in Ireland;

(3) The IPO erred in fact and in law in failing to take into account of [his] personal circumstances before making a decision to transfer the [Applicant] to France;

(4) The IPO failed to take account of the risk of refoulement if the [Applicant] is transferred to France.”

10. At paragraphs 3(ix) and (x) of the Applicant’s submissions to the IPAT, it was submitted that the Applicant “is particularly vulnerable. He is HIV positive, suffers from latent TB, and has required medical attention in Ireland. Medicolegal evidence before the Tribunal highlights in particular his mental health and risk in relation to suicide. His medical condition has been impacted significantly [by] his experiences in Austria and Ireland. He is additionally concerned that the language barrier in France would render necessary supports inaccessible … He has a well-founded fear of persecution should he return to Zimbabwe”.

11. An oral hearing took place on 20th March 2025 and a decision dated 30th June 2025 from the IPAT affirmed the transfer decision.

12. On 1st September 2025, the High Court (O’Regan J.) granted the Applicant leave to apply for judicial review to challenge the decision of the IPAT dated 30th June 2025. This application was made on notice to the Respondents, who adopted a neutral position on the application for leave to apply for judicial review.

Initial injunction application

13. Thereafter, the High Court heard an injunction application by the Applicant and refused same. I have been furnished with the unapproved agreed joint note of junior counsel from both parties of the ruling from High Court (O’Regan J.) refusing the injunctive relief on 1st September 2025.

14. The joint note of junior counsel indicates that at the conclusion of his submissions, Mr Conlon SC (for the Applicant) suggested that as the IPAT had been satisfied to assess Dr. Giller’s first medicolegal report, it could not be suggested now (on behalf of the Respondents) that it was out of date and, in any event, it was submitted that the IPAT member could have directed the commissioning of an up-to-date report. He suggested that if the Court gave directions for an early trial, the risk of the transfer order ‘timing out’ would not arise.

15. In summary, the note records inter alia the Court (i) holding that the Applicant had the facility to update the medical report, (ii) noting that that Dr. Giller believed at the time of her first report (i.e. 18th September 2023) that the Applicant was suicidal and

(iii) inquiring as to what medical attention he was receiving at this time. The note records the Court referring to the judgment of the High Court (Hyland J.) in RG v IPAT (No. 1) [2023] IEHC 742 and, in this regard, confirming its refusal of the injunction application having regard, in particular, to the focus the decision in RG v IPAT (No. 1) placed on the integrity of the Dublin III system, which had been developed by the Member States and had been reviewed twice. The Court observed that whilst the Applicant had an arguable case, its result was not certain, and the integrity of the system also had to be respected and that it was not appropriate to grant an injunction. The Court also had regard to the fact that the Applicant could be returned under Article 29(3) of Dublin III, if he was found to have been wrongfully transferred but that the State would lose the right to transfer him, if the 6 months expired.

16. On behalf of the Applicant, it was also pointed out that if the Applicant was transferred and committed suicide then the case would become moot and it was noted by the court that if such an assertion was the sole determining factor relevant in every case, no transfer could ever proceed.

17. The joint note of junior counsel records the Court refusing the injunction application and determining that it was appropriate to make the necessary directions to allow for an early hearing. The Court observed that the Applicant’s case was somewhat distinguishable from RG (No. 1) and asked the State to bear that in mind and if, when making arrangements for the Applicant’s transfer, to have regard to the fact that the Court was taking all necessary steps to facilitate an expedited hearing. Whilst the Court’s focus was not to interfere with agreements between Member States, it was attempting to balance rights and asked that it also be borne in mind that the Court’s efforts would be of little assistance if the Applicant was transferred before his legal challenge could be determined.

18. Accordingly, after refusing the injunction application, O’Regan J. set out the following timeline for the exchange of documentation so that a first instance hearing could occur before the expiry of the six-month transfer date:

(i) A Statement of Opposition (and Affidavits) were to be filed within two weeks by 15th September 2025;

(ii) Legal submissions on behalf of the Applicant were to be filed within one further week by 22nd September 2025;

(iii) Legal submissions on behalf of the Respondents were to be filed within one further week by 29th September 25;

(iv) The parties were to seek an early hearing date on 10th October 2025.

19. The joint note of junior counsel records Mr. Conlon SC (for the Applicant) asking the Court whether the Applicant had liberty to bring a further application for an injunction if additional evidence became available. The Court confirmed that if the situation changed, the Applicant could bring such an application and reserved the costs of the injunction application.

20. The solicitors for the Applicant duly received an unfiled Statement of Opposition on 19th September 2025.

21. On 23rd September an unfiled verifying affidavit was provided. The exhibits to the Affidavit were sent on 24th September 2025 along with a copy of the filed Statement of Opposition.

22. A copy of the filed verifying Affidavit was received on 25th September 2025.

23. Mr. Conlon SC, for Applicant, indicated that he was taking no issue with the Respondent’s non-compliance with the timeline which had been directed for the exchange of documentation.

24. The Applicant’s solicitor, Barry O’Donoghue, solicitor of Ferrys Solicitors LLP, swore an affidavit on 29th September 2025 where he states, at paragraph 8, that, in light of the arguments advanced on behalf of the Respondents on 1st September 2025 in relation to the Applicant’s application for an injunction, he had written to Dr. Giller on 2nd September 2025, asking that she provide a further report to the medicolegal report previously furnished on 18th September 2023. He exhibited a copy of that update report which is dated 3rd September 2025.

25. Mr. O’Donoghue further states that he enclosed the update to the medicolegal report by correspondence to the Respondents on 4th September 2025.

26. He states that the Applicant attended at the Garda National Immigration Bureau (“GNIB”) as directed on 4th September 2025 and he was directed to attend the GNIB again on 23rd October 2025.

27. Mr O’Donoghue, at paragraph 11 of his Affidavit, stated that the update to the medicolegal report of Dr Giller, dated 3rd September 2025, was not before the IPAT when it made its decision dated 30th June 2025 but that is of direct relevance to the application for an injunction. He states that, insofar as the IPAT made observations in relation to the medicolegal report dated 18th September 2023, at paragraphs 4.27 to

4.39 of its decision, dated 30th June 2025 (which previously were not put to Dr. Giller or to any other expert), the update to the medicolegal report demonstrates the way in which expert evidence might have addressed the IPAT’s concerns had a further report been sought by it.

THE LEGAL GROUNDS OF CHALLENGE

28. By order of the High Court (O’Regan J.) dated 1st September 2025, the Applicant was given leave to apply for judicial review.

29. The following are the legal grounds in the Statement of Grounds relied upon by the Applicant:

Ground 1

30. The Applicant refers to page 14 of Dr Giller’s report dated 18th September 2023 wherein she stated, at paragraph 4.8, as follows:

“4.8 [DS] is currently in a very vulnerable psychological state, living in daily fear of being removed from Ireland. He has been expressing serious suicidal thoughts. In my opinion, if he were to be transferred to France or Austria, or sent back to Zimbabwe, where he fears for his life, he would present a high risk for suicide.”

31. It is then contended that this was sufficient to meet the Article 3 ECHR/Article 4 CFR threshold as set out in the operative part of the

decision in C-578/16PPU, CK v Slovenia (“CK”) at paragraph 98(2):

“(2) Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that:

‒ … the transfer of an asylum seeker within the framework of

Regulation No 604/2013 can take place only in conditions

which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article;

- in circumstances in which the transfer of an asylum seeker

with a particularly serious mental or physical illness would

result in a real and proven risk of a significant and permanent

deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article;

- it is for the authorities of the Member State having to carry

out the transfer and, if necessary, its courts, to eliminate any

serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer”.

32. The first ground then stated that the relevant requirements of CK and of ECHR caselaw, such as Paposhvili v Belgium (Application No. 41738/10) (“Paposhvili”), at paras. 186 et seq. in terms of eliminating the serious doubts, were not met by the Respondents.

Ground 2

33. The second ground relied upon by the Applicant contends that the IPAT failed to have any or any adequate regard or failed adequately to apply or reason in relation to the principles set out by Denham J. (as she then was) in Minister for Justice v Rettinger [2010] 3 I.R. 783 at 791-792 (“Rettinger”).

Ground 3

34. Thirdly, the Applicant states that the IPAT failed to reason adequately and/or failed to take relevant matters into consideration and/or took into account irrelevant considerations and/or acted irrationally and/or acted in breach of fair procedures in finding, at para. [4.35], that “[e]ven if the [Applicant] cannot access the full suite of healthcare immediately, he will have access to emergency healthcare for the first three months”, without addressing whether such emergency healthcare would be sufficient to safeguard the Applicant’s fundamental rights.

Ground 4

35. Fourthly, the Applicant contends that the IPAT failed to reason adequately and/or failed to take relevant matters into consideration and/or took into account irrelevant considerations and/or acted irrationally and/or acted in breach of fair procedures in finding, at para. [4.39] that, “The objective evidence shows that there is a system whereby applicants can access accommodation and financial support”, while acknowledging, at para. [4.36], that “According to the Ministry of the Interior, 59% [sic., 61%] of asylum applicants who were eligible for material reception conditions were accommodated at the end of 2023”.

Ground 5

36. Fifthly, the Applicant contends that the IPAT failed to reason adequately and/or failed to take relevant matters into consideration and/or took into account irrelevant considerations and/or acted irrationally and/or acted in breach of fair procedures in that it failed to provide a reasoned finding in relation to the Applicant’s claim that the language barrier he would face, if transferred, combined with his acute vulnerability, provides a clear basis to believe that his transfer to France may lead to a breach of his fundamental rights.

Ground 6

37. Sixthly, the Applicant argues that the decision was unfair and in this regard was in breach of Article 40.3 of the Constitution and the right to constitutional justice/fair procedures.

Ground 7

38. Seventhly, the Applicant asserts that I should not apply the concept of ‘curial deference’ in considering whether fundamental rights of the Applicant have been breached in this case.

39. The Affidavit of the Applicant, DS, verifying the Statement of Grounds, was sworn on 24th July 2025.

40. An Affidavit of Ana Milward, sworn on 25th July 2025, addressed the obligations under Practice Direction HC81 in terms of the exhibiting of papers relevant to the Applicant’s application.

41. The originating Notice of Motion made the matter returnable to 22nd October 2025.

42. The Respondent’s Statement of Opposition is dated 22nd September 2025. The Affidavit of Tony Dalton, Higher Executive Officer, Immigration Service Delivery (ISD) in the Department of Justice, Home Affairs and Migration, verified the Statement of Opposition. The more recent Affidavit of Bryan Gallagher, APO, in the Immigration Service Delivery of the Department of Justice, Home Affairs and Migration, was sworn on 30th October 2025.

43. In his submissions, Mr. Conlon SC relied on the following passage in Rawson v Minister for Defence [2012] IESC 26 (“Rawson”) where Clarke J. (as he then was) observed as follows, beginning at paragraph (6):

“6.1 It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so, then it is hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld.

6.2 While the circumstances in which a decision made by a public

person or body may be found to be unlawful are varied, it is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision-maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational

decision in the sense in which that term is used in the jurisprudence.

6.3 There may, of course, be many variations or additions to that very broad description of the matters that need to be assessed in order to decide whether a decision affecting rights and obligations has been lawfully made. However, it seems to me that a party faced with a

decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging the lawfulness of the

decision in question. The courts have consistently held that it is an inherent part of the judicial review role of the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge to that decision on the grounds of unlawfulness in an appropriate case.

6.4 In O'Donoghue v An Bord Pleanála [1991] I.L.R.M. 750, Murphy

J. said, at p.757:-

“It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations…””.

44. Relying on Rawson, it was submitted on behalf of the Applicant, that as matter of procedure and fairness (having regard, for example, to the decision of the Supreme Court in Rettinger and the requirement for a decision-maker in an analogous position to the decision-maker in the context of a European Arrest Warrant), the IPO or the IPAT (and potentially the Minister for Justice, Home Affairs and Migration (“the Minister”) when effecting a transfer) was required to carry out a ‘rigorous’ assessment and, in this case, there was a failure by the IPO and the IPAT to do so and to procure the necessary evidence, including medical reports, of their own volition.

45. Further, on behalf of the Applicant, it was submitted, again invoking Rawson, that the

decision-makers here, the IPO and the IPAT, failed to address the correct question, or questions, when exercising their jurisdiction and it was submitted, relying, for example, on CK, Paposhvili and Rettinger, that they failed to apply the correct twostage test when considering the application of Article 3 of the ECHR and Article 4 of the Charter.

46. In summary, it was argued on behalf of the Applicant that “a point not argued is a point not decided”: Laurentiu v Minister for Justice [1999] IESC 47; [1999] 4 I.R. 26 at page 59, where Denham J. (as she then was) referenced The State (Quinn) v Ryan [1965] I.R. 70 (120)).

Request under Article 17(1) of the Dublin III

47. On 21st March 2025, the Applicant made a request for the exercise of discretion pursuant to Article 17(1) of the Dublin III and that his application be determined in Ireland.

48. The application was refused by decision dated 2nd April 2025. The Applicant has not challenged that decision and it, therefore, remains valid (enjoying the presumption of validity of an administrative decision).

49. In his Affidavit sworn on 23rd September 2025, Mr. Dalton, official of the Immigration Service Delivery of the Department of Justice, Home Affairs and Migration, stated that any health issues relevant to the transfer of the Applicant, and his arrival in the responsible Member State, would be transmitted in advance of the transfer by way of the standard form for the transfer of health data prior to transfer set out in Article 32(1) of the Dublin III.

Dr. Giller’s report dated 18th September 2023

50. At paragraph (4.8) of her medicolegal report dated 18th September 2023, Dr. Giller stated that DS “is currently in a very vulnerable psychological state, living in daily fear of being removed from Ireland. He has been expressing serious suicidal thoughts. In my opinion, if he were transferred to France or Austria, or sent back to Zimbabwe, where he fears for his life, he would present a high risk of for suicide.”

51. At section (5) of the report, Dr. Giller set out her “Recommendations” which included that “[DS] would benefit from supportive psychological therapy; at present it is difficult for him to access this because of the isolated location where he is staying and lack of regular transport.”

52. In the “Conclusion” at section (6) of her medicolegal report dated 18th September 2023, Dr. Giller stated as follows:

“(6.1) [DS] has scarring that is consistent (in accordance with the revised Istanbul Protocol, paragraph 418(b), p.99: OHCHR, 2022) with his account of injury while falling against a metal cart, which caused a deep cut to his skin. He is suffering from complex PTSD, severe depression disorder and generalised anxiety disorder as defined in the ICD-11. Together these are highly consistent (in accordance with the revised Istanbul Protocol, paragraph 543 (c), p.128) with his history of prolonged exposure to trauma: attack by police in Zimbabwe and the arrest of his male partner, living in fear in South Africa, arrest and detention in Austria with refusal of his asylum and fear of not being treated for HIV, and homelessness and sleeping rough in Ireland. (6.2) In my opinion, [DS]’s presentation, his distress during the interview, his history of trauma, the scars on his shoulder and his severe symptoms of complex PTSD, depression and anxiety, are congruent and clinically plausible. As the Istanbul Protocol reports: “Ultimately it is the overall evaluation of all clinical findings and not the consistency of one finding in particular that is important in assessing allegations of torture and ill-treatment.[…] the conclusion on all of the clinical evidence should be the highest level of consistency reported” [Istanbul Protocol, paragraph 383, p.90)

In my opinion, the clinical evidence is highly consistent with [DS]’s history of trauma”.

Context for requesting an update to the medicolegal report

53. In the Affidavit of Mr. Dalton sworn on 23rd September 2025, he states that the appeal to the IPAT was the remedy which was adopted by the State when making S.I. 62/2018 European Union (Dublin System) Regulations 2018 (and its predecessors) for the purpose of giving further effect in the State to Dublin III in order to satisfy the requirement for a remedy to be provided against the making of a transfer decision as provided for in Article 27(1) of Dublin III.

54. He states that it was only during the currency of any such appeal to the IPAT that an Applicant is entitled to the suspensive effect of the implementation of a transfer

decision. Thereafter, the six-month time limit for transfer begins to run and there is no possibility of further suspending that time limit which will expire on or about 30th December 2025 and cannot be further extended.

55. This also reflects the legal position as outlined by the CJEU in Case C-359/22 AHY v Minister for Justice ECLI:EU:C:2024:334 (which arose from an Article 267 TFEU preliminary reference from the High Court (Ferriter J.) in AHY v The Minister for Justice [2022] IEHC 198), and which was consistent with the views expressed some months prior to the delivery of the decision of the CJEU in AHY, by the High Court (Hyland J.) in RG (No. 1).

56. This is the context in which the update to the previous medical report was sought from Dr. Giller and which formed the background to the initial injunction application made by the Applicant.

57. By letter dated 2nd September 2025, the Applicant’s solicitors had written to Dr. Giller and enquired whether she was in a position to assess the Applicant and provide a further report to the medicolegal report first furnished by her on 18th September 2023. The letter referred to the time sensitivity of this request and stated that the Applicant had been directed to attend the GNIB on 4th September 2025 in order to facilitate his transfer to France. At that juncture, the Applicant’s solicitors had not been provided with the precise date upon which it was proposed that he be transferred from the State to France.

58. Under a subheading “Claim and issue in question”, the letter to Dr. Giller stated that the nature of the claim was a challenge to the IPAT decision dated 30th June 2025 which affirmed that the Applicant’s application for international protection should be properly examined in France pursuant to the provisions of Dublin III.

59. The letter further referred to paragraph (4.8) of Dr Giller’s medicolegal report dated 18th September 2023, wherein it was stated that “[DS] is currently in a very vulnerable psychological state, living in daily fear of being removed from Ireland. He has been expressing serious suicidal thoughts. In my opinion, if he were to be transferred to France or Austria, or sent back to Zimbabwe, where he fears for his life, he would present a high risk for suicide”.

60. The letter pointed out that the Applicant had made an application for injunctive relief seeking to prevent his removal from the jurisdiction until the determination of these proceedings. This application had been heard on 1st September 2025 and the injunction sought had been refused by the High Court (O’Regan J). The letter stated that at the hearing of the injunction application, the Respondents had canvassed that the medicolegal report dated 18th September 2023 may not represent a current account of the risk posed to the Applicant by his proposed transfer to France. The letter added that the Applicant was entitled to seek further injunctive relief with the benefit of additional evidence.

61. The letter requested Dr. Giller’s expert opinion on the following matters:

“1. Has your professional opinion, as expressed in the

Medicolegal Report of 18th September 2025 changed? If so,

please detail in what regard it has changed.

2. What risk, if any, does transfer to France pose for [the

Applicant]?

3. What comment, if any, would you make in relation to the

matters stated by the IPAT in its decision dated 30 June 2025?

In particular, we refer to paragraphs 4.27 and 4.38, where the

IPAT states inter alia that:

(a) ‘It is noted that Dr Giller conducted an interview with the appellant online. She did not examine him in person.’

(b) ‘She said he would benefit from support of psychological

therapy. However, it does not appear that the appellant has

linked in with the psychological services here.’

(c) ‘Furthermore, there is no evidence in the report to suggest that he has a diagnosed psychiatric illness from a psychiatrist or that he is on medication for his mental health.’

(d) ‘Having assessed the material facts and circumstances, it

is accepted that the [Applicant] is vulnerable and the report of

Dr. Giller supports that claim. He is not currently taking any

medication for psychiatric illness, nor is there evidence that

he is seeking a psychiatrist.’”

62. The letter also stated that, if the queries raised required the expert opinion of a psychiatrist, the Applicant’s solicitors would appreciate Dr. Giller’s referral to an appropriate practitioner.

63. The letter dated 2nd September 2025 from the Applicant’s solicitors also stated, under the heading “Relevant legal test”, that the relevant legal test was captured by the following extract from the decision of the CJEU in CK:

“(2) Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that:

- … the transfer of an asylum seeker within the framework of

Regulation No 604/2013 can take place only in conditions which

exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that Article;

- in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that Article;

- it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person’s state of health. If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member States concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer”.

64. The letter went on to refer, under the sub-heading, “A Duty of Independence”, to Dr. Giller’s overriding duty to the court stating that Dr. Giller should notify the Applicant’s solicitors if she considered that any aspect of the instructions was outside her expertise, or at any time if her opinion or conclusions changed as a result of any new information or having considered the report of any other expert retained in the case, or if she considered that another opinion would be required from an expert in her own area of specialisation or another area of specialisation.

65. Dr. Giller produced an “Update to medicolegal report” which was dated 3rd September 2025 and inter alia recorded that the date of the original report was 18th September 2023.

Update to medicolegal report dated 3rd September 2025

66. In the “Update to medicolegal report” dated 3rd September 2025, Dr. Giller stated that she had interviewed the Applicant two years previously for the purpose of producing a medicolegal report and set out her qualifications and experience.

67. At the beginning of the update to the medicolegal report dated 3rd September 2025, Dr. Giller drew attention, and responded to, several comments in the IPAT decision dated 30th June 2025 at paragraphs 4.37 and 4.28, as follows:

“(a) ‘Dr Giller… did not examine [the client][1] in person.’ Online mental health assessments are considered of equal value to face-to-face assessments in many situations and are frequently used in both primary care and psychiatric settings.

(b) ‘The client did not link in with psychological service in Ireland.’ At the time that I did my first assessment, the client was living in a rural army camp, far from many services. He then moved to Kilkenny ‘The client’ makes reference to the Applicant in these proceedings.

where he was able to secure work as a cleaner and security guard.

He comes from a culture which does not foreground individual

psychotherapy as a means of treatment for psychological distress; in fact a very frequent response to traumatic memories is one that he clearly demonstrates – that of active avoidance of such memories. It is not unusual therefore that he did not seek psychological help, or indeed medication, which often renders daily functioning difficult.

Instead he worked as many hours as he could as a means of

distraction from intrusive thoughts.

(c) ‘There is no new evidence in the reports to suggest that [the client] has a diagnosed psychiatric illness from a psychiatrist or that he is on medication for his mental health’. The implication here is that only a psychiatrist can make a diagnosis of a mental health condition. This is simply not the case. In medical practice, most psychiatric diagnosis (as well as diagnosis of physical health conditions) are made at primary care level by GPs and most mental health care is delivered at primary care level. I have over forty years’ experience as a doctor and specialist training in mental health work. I am fully qualified to diagnose conditions described in this report. The other implication of this statement by the Tribunal member is that only a person taking psychiatric medication can they [sic.] be regarded as having a bona fide mental health condition. Again this is not correct. Many patients with serious mental health conditions do not have access to medication for one reason or another and, in many situations, drug treatment is not the only or even the preferred treatment. Many psychiatric drugs have sedative effects and when the patient is attempting to work, this can be something that they actively avoid.”

68. In her Update to medicolegal Report dated 3rd September 2025, Dr. Giller then refers to the “Medical psychological history since 2023”, the “Current mental state examination” and gives her “Opinion” as follows:

“[DS] currently has symptoms that fulfil the criteria for the diagnosis of complex post-traumatic stress disorder, severe depressive disorder and generalised anxiety disorder (as I diagnosed in 2023). However, in my opinion, his mental health has decompensated even further as he faces the prospect of deportation. He is currently in an extremely agitated and depressed state and expresses that he has lost all hope for the future. He reports that he is terrified of being sent to France and has vivid nightmares about this. He has indicated that he cannot face the terror of being sent there and would kill himself to avoid this. In my clinical opinion, there is a real and significant risk that his levels of hopelessness, despair, anxiety and fear will become overwhelming. In my opinion, therefore, there are substantial grounds for believing that deportation will expose [DS] to a serious, rapid and irreversible decline in his mental health, resulting in intense suffering. I believe that there is a significant risk to his life because of his growing suicidal ideation.”

69. Dr Giller then set out a statement of truth and signed her report dated 3rd September 2025.

Urgency & second injunction application

70. After the first day of the hearing before me, on 5th November 2025, the GNIB served what is effectively a replacement letter to require the Applicant to attend in Burgh Quay on 11th December 2025 to facilitate his transfer to France. The letter from GNIB to the Applicant dated 6th November 2025 stated inter alia as follows:

“I acknowledge that you are due to present yourself to a member of An Garda Síochána at Garda National Immigration Bureau on 08/01/2026 in response to a request to do so made by the *Department of Justice, Equality and Law Reform /* Garda National Immigration Bureau/*a member of An Garda Síochána. This date has now been changed. This Date has now been changed.

In order to facilitate your transfer from the State please note that pursuant to the provision of Regulation 10(2) of the S.I. No. 62/2018, you are required to :

i. present at Hatch 20, Garda National Immigration Bureau, 13/14

Burgh Quay, Dublin 2 on 11/12/2025 at 1PM to make arrangements

for your transfer;

(You must present yourself at the GNIB Offices at the time allocated to you above.)

ii. co-operate in anyway necessary to enable a member of An Garda Siochana or Immigration Officer to obtain travel documents, passports, travel tickets or other documents required for the purpose of your travel;

iii. reside at the above address pending your transfer from the State.

Pursuant to the provisions of Regulation 10(4) of the same

regulations a member of An Garda Siochana or an Immigration

Officer may for the purpose of facilitating your transfer if he or she considers that there is a significant risk that you will abscond, you may be arrested and detained without further notice for the purpose of facilitating your transfer from the State in accordance of S.I. No. 62/2018. This provision does not apply to persons under the age of 18 years unless the member of An Garda Siochana or an Immigration Officer suspects or has reasonable grounds for believing that you are not under the age of 18 years”.

71. After the initial injunction application had been refused by O’Regan J. on 1st September 2025, directions had been given which recognised the urgency of the matter given the (then) indicated transfer date. The Applicant has not chosen to appeal the refusal to grant an injunction and had relied, rather, on the observations of the Court that he could effectively renew the application for injunctive relief, and in doing so, the Applicant had factored in the State’s argument that Dr. Giller’s first medicolegal report was ‘dated’ and hence the correspondence to Dr. Giller seeking an update to the previous medicolegal report.

72. During the course of the hearing, I discussed the urgency of this matter with the parties in light of the following matters: the requirement that the Applicant attend at Burgh Quay on 11th December 2025 to facilitate his transfer, the fact that the 6-month time limit was running and, the prospect that either of the parties may wish to appeal any subsequent decision and judgment delivered by me. In the circumstances, I indicated that I would endeavour to give judgment in or around a period of two weeks, and on that basis, senior counsel for the State indicated that nothing would change2 during that period, which obviated the necessity to determine any renewed injunction application, at that juncture, and before delivery of this judgment.

73. In the circumstances, the positions adopted by both parties is appreciated in facilitating the judgment which is delivered today and the determination of a complex and serious matter.

Senior Counsel for the State indicated that his instructions were that this was not an ‘undertaking’.

DISCUSSION & DECISION

The Charter

74. Article 1 of the of the Charter of Fundamental Rights of the European Union (‘the Charter’) under the sub-heading “Human dignity”, states: “Human dignity is inviolable. It must be respected and protected.”

75. Article 4 of the Charter, under the subheading ‘Prohibition of torture and inhuman or degrading treatment or punishment’, provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This corresponds with Article 3 of the ECHR3 and Article 52(3) of the Charter, under the sub-heading “Scope and interpretation of rights and principles”, provides that insofar as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the ECHR, and does not prevent EU law providing more extensive protection.

Dublin III

76. Article 3 of Dublin III under the sub-heading ‘Access to the procedure for examining an application for international protection’, provides as follows:

“1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or Article 3 of the ECHR, under the sub-heading ‘Prohibition of torture’ states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it. Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter … , the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible.”

77. Article 3(2) of (the amended) Dublin III is a codification of the judgments of the CJEU in Cases C-411/10 and C-493/10, joined-cases of NS v UK and ME v Ireland, EU:C:2011:865, [2011] ECR I-0000 (“NS & ME”).

78. Article 17(1) of Dublin III under the sub-heading “Discretionary clauses” provides that by way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination was not its responsibility under the criteria laid down in Dublin III.

79. Chapter VI of Dublin III Regulation, under the sub-heading “Procedures for taking charge and taking back” includes inter alia Articles 27, 29, 31 and 32.

Mutual trust & confidence between Member States

80. In addressing the third question in the preliminary reference which was asked in Case 163/17 Jawo v Germany ECLI:EU:C:2019:218 (“Jawo”), the CJEU, for example, at paragraph (80) of its judgment, recalled that EU law was based on the principle that the Member States share a set of common values on which the EU was founded (Article 2 TEU) which subtends the principle of mutual trust between them, and at paragraph (81), it stated that the principle of mutual trust between the Member States was, in EU law, of fundamental importance given that it allows an area without internal borders to be created and maintained.

81. More specifically, the principle of mutual trust required, particularly as regards the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law, observing at paragraph (82) that:

“(82) Accordingly, in the context of the Common European Asylum System, and in particular the Dublin III Regulation, which is based on the principle of mutual trust and which aims, by streamlining applications for international protection, to accelerate their processing in the interest both of applicants and participating States, it must be presumed that the treatment of applicants for international protection in all Member States complies with the requirements of the Charter, the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), and the ECHR (see, to that effect, judgment of 21 December 2011, N. S. and Others, C-411/10 and C-493/10, EU:C:2011:865, paragraphs 78 to 80).”

Rights

82. Equally, arising from NS & ME and Jawo, a requesting Member State is required to ensure that a person will not suffer any degrading treatment and that their living conditions will comply with the Charter consequent upon their transfer to the intended receiving Member State, and pending the examination of their asylum request in that State. On one view, it could be extrapolated that the CJEU in Jawo adopted a strict interpretation of degrading living conditions which requires the establishment of a real risk of exposure to a situation of extreme material poverty.

83. According to decisions such as NS & ME and Jawo, for example, and now reflected in Article 3(2) of Dublin III, an applicant for asylum may not be transferred under Dublin III to the Member State responsible for processing their application, if the living conditions would expose them to a situation amounting to inhuman or degrading treatment within the meaning of Article 4 of the Charter (and, as per Article 52(3) of the Charter, Article 3 of the ECHR).

84. In Jawo, (at paragraphs 91 to 93 of its judgment), the CJEU held that this standard or threshold was satisfied where such deficiencies reached a particularly high level of severity beyond a high degree of insecurity or a significant degradation of living conditions – as per the decision of the ECtHR, at paragraph (254) in MSS v Belgium & Greece, Application No. 30696/09 CE: ECHR: 2011:0121JUD003069609 (“MSS v Belgium & Greece”) – such that national courts are required to assess whether there was a real risk that an applicant may end up in extreme material poverty that does not allow them to meet their most basic needs, such as, inter alia, food, personal hygiene and a place to live that undermines their physical or mental health or puts them in a state of degradation incompatible with human dignity as per the decision of the ECtHR, at paragraphs (252 - 263) in MSS v Belgium & Greece.

85. At paragraph (93) of its judgment in Jawo, the CJEU held that “[t]hat threshold cannot therefore cover situations characterised even by a high degree of insecurity or a significant degradation of the living conditions of the person concerned, where they do not entail extreme material poverty placing that person in a situation of such gravity that it may be equated with inhuman or degrading treatment”.4 Emphasis added in this judgment.

86. Therefore, at paragraph (95) of its judgment in Jawo, the CJEU held that it could not be ruled out that “an applicant for international protection may be able to demonstrate the existence of exceptional circumstances that are unique to him and mean that, in the event of transfer to the Member State normally responsible for processing his application for international protection, he would find himself, because of his particular vulnerability, irrespective of his wishes and personal choices, in a situation of extreme material poverty meeting the criteria set out in paragraphs 91 to 93 of the present judgment after having been granted international protection”.

87. It is, I believe, generally of assistance when considering the applicable jurisprudence dealing with questions of transfer, to do so through the paradigmatic analysis of balancing principles, which are sometimes competing, in the context of the particular facts of any one case.

88. Georgios Anagnostaras, in “The Common European Asylum System: Balancing Mutual Trust Against Fundamental Rights Protection”, German Law Journal (2020), 21, pp. 1180-1197 (Cambridge University Press), for example, discusses the competing principles and tensions between the rights of individuals, on the one hand, and the principle of mutual confidence and trust and the need to preserve the effectiveness of EU law, on the other hand, in the context of Dublin III and the Common European Asylum System and how the decision of the CJEU in Jawo further clarifies the circumstances in which the protection of fundamental rights may introduce exceptions to the principle of mutual trust and confidence as between Member States. In circumstances where there are systemic or individual violations of human rights, the presumption of conformity and the principle of mutual recognition and trust can be excepted and effectively disapplied.

89. In NVU v The Refugee Appeals Tribunal [2020] IESC 46, Charleton J., for example, observed at paragraph (37) of his judgment, as follows:

“The purpose of Dublin III is to find and to transfer responsibility to the country responsible for deciding on international protection. This is designed to be a transparent, swift and mutually entrusted process. One with which those seeking international protection should and are required to cooperate. Where individuals come illegally, without a visa and without a residence permit, to this jurisdiction and forego legal status within another country subject to Dublin III, or abandon an application for international protection there, rights are not simply assumed by virtue of travel. Nor is it necessary for there to be a specific consideration of potential or possible rights. If these are specifically asserted and on a factual basis which, exceptionally, engages such rights, consideration should be given. But this would be a rare exception. This is an administrative scheme assuming equal protection in all participating countries. What it involves is returning those seeking international protection to a country issuing travel or residence documents or where they had previously started an application. Nothing more than that could ordinarily be involved.

Furthermore, as has been emphasised by the CJEU at paragraph 98

of [Case C-493/10 NS v Secretary of State for the Home Department], it is not for countries to “worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member state responsible which takes an unreasonable length of time.” Rather, the system under Dublin III assumes equality of rights being upheld throughout and that transfer enables the examination in the transferred country as thoroughly as here, and probably more expeditiously.”

90. In CK, the CJEU heard an urgent preliminary reference from Slovenia concerning the application of Dublin III in circumstances of a couple with a newborn child, where the mother was seriously ill, sought asylum in Slovenia where the application of Dublin III suggested that Croatia was the appropriate state for assessing the application and it did not have systemic flaws in its asylum process. Thus the question which arose centred on whether the exercise of jurisdiction under Article 17 of Dublin III in relation to a proposed transfer was only prohibited where there was evidence of systematic deficiencies in the intended receiving state contrary to Article 4 of the Charter (and Article 3 of the ECHR) or whether a transfer should be restrained when a risk of an Article 4 Charter (or Article 3 ECHR) breach also arose because of the individual circumstances of the person or persons seeking asylum.

91. The CJEU, in its decision of 16th February 2017 in CK did not follow the opinion of AG Tanchev, but inter alia held that even where there were no substantial grounds for believing that there were systemic flaws in the proposed receiving State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of Dublin III could take place only in conditions which excluded the possibility that that the transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of Article 4 of the Charter.

92. In CK, the CJEU held at paragraph (93), that it would be irreconcilable with the general character of Article 4 of the Charter – which prohibits inhuman or degrading treatment in all its forms – and manifestly incompatible with the absolute character of that prohibition, if Member States could disregard a real and proven risk of inhuman or degrading treatment affecting an asylum seeker under the pretext that it does not result from a systemic flaw in the Member State responsible.

93. Accordingly, therefore, the CJEU held at paragraphs (91) to (96) of its judgment, that an asylum seeker may not be transferred to a Member State, even where there are no grounds for believing that there is a systemic failures in the proposed receiving State, if there is a real and proven risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter.

94. In CK the CJEU, therefore, accepted that the individual circumstances of the asylum seeker should be taken into account and that a transfer could only occur in conditions which precluded the existence of a serious risk of degrading treatment.

95. The CJEU outlined the medical issues involved in that case and that, for example, CK had a high-risk pregnancy and she had suffered psychiatric difficulties since giving birth. A specialist psychiatrist had diagnosed her as having post-natal depression and periodic suicidal tendencies. A number of medical opinions stated that the poor state of health of CK was mainly caused by uncertainty regarding her status and the consequent stress and that the deterioration in her psychological state could result in her behaving aggressively behaviour such that she might require hospital care. The illness suffered by CK, according to a psychiatrist, required that she and her child remain at the reception centre in Ljubljana to receive care there. Further, the facts of CK included medical opinions which concerned whether the mere fact of transferring CK, considered in isolation, was compatible with Article 3 of the ECHR irrespective of the quality of the reception and care that she would then get in the receiving Member State or the existence of systemic problems there.

96. A similar general approach is evident with European Arrest Warrants. The decisions of the Supreme Court in Minister for Justice v Rettinger [2010] 3 I.R. 783, for example, concerned a European Arrest Warrant (EAW) which, in G & M v The IPAT & Ors [2025] IECA 208, Butler J. for the Court of Appeal (Whelan, Butler and Meenan JJ.) observed, involved the Supreme Court considering the standard of proof that should apply in a European Arrest Warrant case when a person facing surrender complains of the danger of being subjected to inhuman or degrading treatment in the issuing member state (Fennelly J. at paragraph 64).

97. In her judgment in Rettinger, Denham J. (as she then was) at paragraph 27 set out the following principles which required a rigorous examination as to whether there was a real risk and to examine the foreseeable consequences of sending the person to the requesting state:

“(i) A court should consider all the material before it, and if necessary, material obtained of its own motion.

(ii) A court should examine whether there is a real risk, in a rigorous examination.

(iii) The burden rests upon an applicant, such as the appellant in this case, to adduce evidence capable of proving that there are substantial grounds for believing that if he (or she) were returned to the requesting country he, or she, would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR.

(iv) It is open to a requesting State to dispel any doubts by evidence. This does not mean that the burden has shifted. Thus, if there is information from an applicant as to conditions in the prisons of a requesting State with no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if the applicant were returned to the requesting state he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the ECHR. On the other hand, the requesting State may present evidence which would, or would not, dispel the view of the court.

(v) The court should examine the foreseeable consequences of

sending a person to the requesting State.

(vi) The court may attach importance to reports of independent

international human rights organizations, such as Amnesty

International, and to governmental sources, such as the U.S. State Department.

(vii) The mere possibility of ill treatment is not sufficient to establish an applicant's case.

(viii) The relevant time to consider the conditions in the requesting state is at the time of the hearing in the High Court. Although, of course, on an appeal to this Court an application could be made, under the rules of court, seeking to admit additional evidence, if necessary.”

98. In his judgment, Fennelly J. addressed section 37(1)(c) of the European Arrest Warrant Act 2003 which inter alia provided that it was sufficient to establish that “there are reasonable grounds for believing that” the person would be “subjected to … inhuman or degrading treatment” and referred to the judgment of the ECtHR in Soering v United Kingdom (App. No. 14038/88) (1989) 11 E.E.R.R. 439 which spoke of “substantial grounds for believing that the person concerned, if extradited, would face a real risk of being subjected to torture or to inhuman or degrading treatment”.

99. Fennelly J. held each test focused, firstly, on the quality of the evidence or “grounds” and, secondly, on the level of risk and that in practice the two elements were closely connected and would, in many cases, merge into a single test. He stated that the subject-matter of the enquiry was the level of danger to which the person was exposed and that there was no discernible difference between “reasonable grounds” and “substantial grounds” and held that it was equally clear that it was not necessary to prove that the person would probably suffer inhuman or degrading treatment and that it was enough to establish that there was a “real risk”, stating the following at paragraph 27 of his decision:

“The 13th recital to the Framework Decision speaks of “serious risk;” the term “real risk” is consistently used by the European Court in its case-law, including Soering and Saadi. It is appropriate to the seriousness of the subject matter. It would be absurd to require a person threatened with expulsion to a state where he may be exposed to inhuman or degrading treatment, not to mention torture, to prove that he would probably suffer such treatment. It must be sufficient to establish “real risk.””

Application to the Applicant’s circumstances

100. In this case, under cover of correspondence dated 7th July 2025, sent to the Applicant and his solicitors, the IPAT affirmed the determination of the IPO and notified the Applicant and his legal advisors that this decision and all of the original papers had been forwarded to the Minister for Justice and the IPO and that a representative of the Minister would be in contact. The decision and report of the IPAT member dated 30th June 2025 was enclosed.

101. The decision and report of the IPAT dated 30th June 2025 ran to 24 pages and was structured as follows: [1] Case date; [2] Introduction, which included setting out ‘the Dublin Process’, the take charge requests, the transfer decision of the IPO dated 16 th November 2023, the appeal to the IPAT; [3] Case Facts and Documents (including medical reports), the Article 5 (of Dublin III) interview, submissions in relation to the responsible country, submissions in relation to the transfer decision, submissions in relation to inhuman and degrading treatment; [4] Assessment of Facts & Circumstances, including the Article 5 (of Dublin III) interview, the responsible country, the transfer decision, the risk of inhuman and degrading treatment which includes references to case law including inter alia NS & ME , RG v IPAT (No. 1) [2023] IEHC 742, Case C-359/22, AHY v Minister for Justice [2022] IEHC 198 (Case C-359/22 AHY v Minister for Justice ECLI:EU:C:2024:334), and NVU v Minister for Justice & Equality and Ors [2020] IESC 46, issues relating to Article 17 of Dublin III; and, [5] Conclusion.

102. In the context of the Applicant’s challenge in this judicial review, in the report and

decision of the IPAT dated 30th June 2025, the Applicant’s submissions, which inter alia refer to MSS v Belgium & Greece, are referenced (beginning on page 14 of 24) under the sub-heading “Risk of inhuman and degrading treatment.”

103. It is the analysis under this sub-heading which forms the basis of the consideration of the issues raised by the Applicant in this judicial review application and which is addressed by the IPAT from paragraphs [4.15] to [4.40] of its 30th June 2025 report and decision.

104. Again, reflecting the submissions which were made to the IPAT, on behalf of the Applicant – and the authorities of NS & ME – the IPAT at paragraphs [4.18] and [4.19] of its 30th June 2025 report and decision – states as follows:

“[4.18] The test for considering whether a breach of Article 3 ECHR exists is “whether a situation of extreme material poverty” is created for an asylum seeker by reason of the State’s reception conditions, as per MSS v Belgium & Greece 53 EHRR 28.

[4.19] It was submitted that if transferred to France, the [Applicant] will almost certainly be placed in conditions considered impermissible under MSS v Belgium & Greece 53 EHRR 28. He will also risk being returned to Zimbabwe”.

105. At paragraphs [4.20] to [4.25] of its decision and report dated 30th June 2025, the IPAT refers further to the legal submissions made on behalf of the Applicant which included references to, and extracts from, AIDA reports (i.e., the Asylum Information Database which is a database managed by ECRE (the European Council on Refugees and Exiles)) on France and at paragraph [4.23] to the decision of the ECtHR in NH & Ors v France (App No. 28820/13) which held that France had violated Article 3 of the ECHR by causing the applicants to live in inhuman and degrading circumstances and the IPAT noted that “this decision is five years old and it [i.e., the IPAT] must look to up to precise and up to date country information in relation to the present case”.

106. At paragraph [4.26] of its decision and report dated 30th June 2025, again referencing AIDA, the IPAT inter alia recorded that “[i]t was submitted that in light of the paperwork outlined by AIDA as necessary to access healthcare, the [Applicant] is afraid that the language barrier will exacerbate his vulnerability and potentially prevent him from accessing vital services”.

107. At paragraph [4.27] of the decision and report of 30th June 2025, the IPAT assessed the individual circumstances which applied to the Applicant in the following terms and stated that it had “assessed the detailed submissions and objective country information put forward by the [Applicant] in order to assess if he would suffer inhuman and degrading treatment if he were transferred to France to have his international protection application dealt with there. The Tribunal is mindful of the fact that the [Applicant] has a number of health issues. He has HIV, latent TB and he had surgery in his stomach in 2024. Dr Joan Giller (Obstetrician & Gynaecologist/ Psychotherapist) submitted a report dated the 18th of September 2023. It is noted that Dr Giller conducted an interview with the [Applicant] online. She did not examine him in person. She found that his current medical and psychological complaints include HIV, latent TB, scarring on the left shoulder, insomnia, fear and suicidal ideation. He is taking HIV tablets, a tablet for his TB and Vitamin B6. Dr Giller concludes that the [Applicant] is deeply traumatised, severely depressed and anxious. He has complex PTSD and is deeply traumatised, severely depressed and anxious. He has complex PTSD and is emotionally numb. He also suffers from generalised anxiety disorder. Dr Giller states that the [Applicant] had been expressing suicidal thoughts. She said he would benefit from supportive psychological therapy. However, it does not appear that the Applicant has linked in with the psychological services here. Furthermore, there is no evidence in the report to suggest that he has a diagnosed psychiatric illness form [sic.] a psychiatrist or that he is on medication for his mental health”.5

108. In this extract of its assessment which is underlined, the IPAT took into consideration the individual and unique circumstances of this Applicant. This assessment included the Applicant’s medical condition but also had regard to the fact that there was no evidence of the Applicant having connected with the psychological services in Ireland or that he had undergone a diagnosed psychiatric illness from a psychiatrist or that he Underlining added in this judgment.

was on medication for his mental health. The IPAT considered, in a holistic way, the particular vulnerability and circumstances of the Applicant.

109. Whilst this assessment of the Applicant’s individual circumstances (as underlined in the extract above) is book-ended, at the beginning of the analysis by a statement which states that the IPAT has “assessed the detailed submissions and objective country information put forward by the Applicant in order to assess if he would suffer inhuman and degrading treatment if he were transferred to France to have his international protection application dealt with there” and at the end of the analysis by a sentence immediately following which states that the IPAT “must assess whether the [Applicant] would have access to accommodation, medical assistance, food and sanitation if he is returned to France. Furthermore, the Tribunal must assess whether he would be subjected to inhuman and degrading treatment on his return”, the assessment carried out by the IPAT of the Applicant’s individual circumstances in the extract quoted above, addresses, in the first instance: (a) the medical condition of the Applicant (including the question of medication); and (b) his lack of engagement with additional psychological and psychiatric services in Ireland and this is carried out on a standalone basis, irrespective of the question of systemic flaws in France.

110. As in RG v The IPAT & Ors (No. 1) [2023] IEHC 742, the IPAT, when considering the individual circumstances of a claimant, is entitled to have regard to the medical treatment which is in fact being received by that person (in relation to a range of illnesses including what might be described, in that case (at that point) as chronic ailments) or in RG v The IPAT & Ors (No.2) [2024] IEHC 579 where, at paragraph 79 of the judgment, reference was made to the exception of the development of suicidal ideation by the claimant at the thought of being returned to France by the time of the second medicolegal report in that case, noting that “there had been no referral to a GP or to a psychiatrist, and very little appeared to have been done in that context between the report in April 2023 and January 2024 for somebody who was believed to be at a high risk of suicide” and, on the facts of that case, it was contended that there was very little difference between the medicolegal report issued in April 2023 and that issued in January 2024.

111. The assessment by the IPAT in its decision and report dated 30th June 2025, of the Applicant’s medical condition (including medication) and his lack of engagement with additional psychological and psychiatric services in Ireland focused, in the first instance, on his individual circumstances which was a point of emphasis in CK when assessing the risks of inhuman or degrading treatment. This, in my view, satisfies, in substance, the increased measure of protection required by Dublin III and discussed in CK in that it was an individualised assessment of the Applicant’s situation and suggests that the Applicant’s vulnerability did not equate with the exceptional circumstances that applied in CK.

112. Furthermore, in CK, the CJEU (at paragraphs (80) to (87) of its judgment) also addressed the issues of health care precautions to be carried out by the requesting state during and after the transfer, stating that the Member State carrying out the transfer must be able to organise it in such a way that the asylum seeker concerned is accompanied, during transportation, by adequate medical staff with the necessary equipment, resources and medication, so as to prevent any worsening of his health or any act of violence by him towards himself or other persons.

113. Further, at paragraph (82) of its judgment in CK, the CJEU stated the Member State must also be able to ensure that the asylum seeker concerned receives care upon his arrival in the Member State responsible, and recalled that “Articles 31 and 32 of the Dublin III Regulation require the Member State carrying out the transfer to communicate to the Member State responsible such information concerning the state of health of the asylum seeker as to allow that Member State to provide him with the immediate health care required in order to protect his vital interests” and (at paragraph (83)) the “standard form set out in Annex VI to the implementing regulation and the common health certificate found in Annex IX to that regulation may thus be used to inform the Member State responsible that the asylum seeker concerned requires medical assistance and care upon his arrival, as well as all the relevant aspects of his illness and the care which that illness will make necessary in the future. In that case, that information must be communicated within a reasonable period of time before the transfer is carried out, in order to provide the Member State responsible with sufficient time to take the necessary measures. The Member State carrying out the transfer may, in addition, obtain from the Member State responsible the confirmation that the necessary care will be fully available upon arrival.”

114. The choices available, for a Member State, were discussed at paragraphs (84) to (87) of the judgment of the CJEU in CK as follows:

“(84) If the court having jurisdiction finds that those precautions are sufficient to exclude any real risk of inhuman or degrading treatment in the event of transferring the asylum seeker concerned, it will be for that court to take the necessary measures to ensure that they are implemented by the authorities of the requesting Member State before the person concerned is transferred. Where necessary, that person’s state of health should be reassessed before the transfer is carried out.

(85) On the other hand, if the taking of those precautions is, regard being had to the particular seriousness of the illness of the asylum seeker concerned, not sufficient to ensure that his transfer will not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member State concerned to suspend the execution of that person’s transfer for such time as his state of health renders him unfit for such a transfer.

(86) In that regard, it must be recalled that, in accordance with Article 29(1) of the Dublin III Regulation, the transfer of the applicant from the requesting Member State to the Member State responsible is to be carried out as soon as ‘practically possible’. As is apparent from Article 9 of the implementing regulation, the ill health of the asylum seeker is specifically regarded as a ‘physical reason’ capable of justifying postponement of the transfer.

(87) If the state of health of the asylum seeker concerned does not permit his transfer, it is then for the requesting Member State, in accordance with that provision, to inform the Member State responsible without delay of the postponement of the transfer due to the condition of that asylum seeker.”

115. Having regard to the matters canvassed at paragraphs (80) to (87) of the judgment of the CJEU judgment in CK (set out above), the Affidavit of Bryan Gallagher, APO in the Immigration Service Delivery section of the Department of Justice, Home Affairs and Migration sworn on 30th October 2025 points out that the procedures adopted by the Minister in the transfer process comply with the provisions of Article 3 ECHR/Article 4 Charter.

116. At paragraph (5) of his Affidavit Mr. Gallagher, for example, states:

“(5) When mental health issues arise in the context of a transfer under the Regulations, it is taken very seriously by the Minister. Usually, the person will have been on treatment/medication and/or will be under the ongoing care of clinicians who will, with the consent of the person, provide information on the psychiatric condition, the treatment received, and the treatment plan or path required going forward including details of medication. Normally, where a person has suicidal ideation there will be a referral to a GP or psychiatrist.

It would not be unusual in a given case, for there to be a case

conference between the treating doctors, social worker involved and the transfer unit in the Department of Justice, Home Affairs and Migration. The information is then passed on to the receiving country through the Dublinet system, which is the system set up under the Dublin III Regulation for the purposes of transferring information between countries in the Dublin III Regulation system. In such cases the Minister would, with the consent of the person, also ask the treating doctors to share the information directly with the doctors in the receiving county who would be taking over the treatment of the person. In addition, where it is deemed necessary, the person would be accompanied by one or more medical professionals on the flight. In some cases where the medical evidence from the treating doctors demonstrates that the risk to the person concerned is too high, we have in the past cancelled or postponed the transfer.

(6) Of note in this case, and as outlined in the Tribunal decision, no specific medication or treatment that the Applicant required on an ongoing basis is disclosed in the Report of Dr. Giller, Psychotherapist dated 18th September, 2023.

(7) Further, in relation to the update to the medicolegal report of Dr. Giller dated 3rd September 2025, which is exhibited to the report of Barry O’Donohue sworn on 29th September 2025, it remains the case that the Minister is not put on notice of any specific ongoing treatment plan or medical intervention or assistance that would be required on arrival other than to notify the French authorities that he has mental health issues and has expressed suicidal thoughts. As outlined in the Verifying Affidavit of Tony Dalton, any health issues relevant to the transfer of the Applicant and/or his arrival in the responsible Member State will be transmitted in advance of the transfer by way of the Standard Form for the transfer of health data prior to transfer pursuant to Article 32(1) of the Dublin III Regulation”.

117. Additionally, Annex IX - the Standard Form For Exchange of Health Data prior to a Dublin Transfer Pursuant to Article 32(1) of Regulation (EU) No. 604/2013 provides inter alia as follows:

“I. Information provided by the transferring Member State

General evaluation of the person’s health:

Disabled

Elderly

Pregnant

Minor

Victim of torture or other form of physical violence

Victim of rape or other form of sexual violence

Victim of psychological violence

Suffering from a psychiatric condition

Suffering from any other condition that requires medical help

Please specify whether the evaluation was based on the person’s selfassessment or provided by a medical staff.”

118. Further, in assessing the central submissions which were made on behalf of the Applicant in the context of Article 3 of the ECHR and Article 4 of the Charter, the IPAT also considered whether a situation of extreme material poverty, as considered, for example, by the Strasbourg Court in MSS v Belgium & Greece, applied to the Applicant’s circumstances.

119. The IPAT, following the reference to assessing the Applicant’s access to accommodation, medical assistance, etc., in France, then goes on to consider the conditions in France in the following paragraphs of its report and states, for example, at paragraph [4.28] that it “has considered all the objective country information submitted by [the Applicant] in respect of asylum seekers in France. Unfortunately, like many EU member states, the system is far from perfect, with many people on waiting lists for accommodation, which is not dissimilar to the situation in Ireland. Indeed, the [Applicant] gave evidence that he was living in a tent for in or around a month when he arrived in Ireland. The question for the Tribunal is whether this Appellant would be able to access food, shelter and healthcare on his transfer or whether his transfer would amount to inhuman and degrading treatment.”

120. The Applicant’s “individualised situation” is also inter alia referred to at paragraph [4.33] of the IPAT’s decision and report dated 30th June 2025 where it states that “Taking the above dicta into account in the context of the [Applicant’s] individualised situation, the medical report and the country information, the Tribunal finds [the Applicant] is a vulnerable man who is depressed, anxious and who suffers from CPTSD. He has been expressing ‘serious suicidal thoughts’. Dr Giller opines that if he were returned to France, he would present a high risk for suicide. The Tribunal gives serious consideration to the matters outlined in the report. The question is whether the Appellant would be able to seek medical treatment on his transfer in relation to his mental health issues and his other physical illnesses”. 6 Bold emphasis added in this judgment.

121. At paragraph [4.34] of its report, the IPAT observes that “It is clear from reading the AIDA report which has been cited that there is specific screening for vulnerable individuals who apply for asylum. The [Applicant] has now been assessed in Ireland, and he has a detailed report which he can submit to the French authorities if transferred. The AIDA Report 2024 stated that ‘OFII is responsible for identifying vulnerabilities and special needs of asylum seekers. In order to do so, OFII has to proceed, within a “reasonable” timeframe, to an evaluation of vulnerability. This evaluation, that concerns all asylum seekers, takes the form of on [sic.] interview based on a questionnaire. The interview follows the registration of their claim in the Prefectures. The objective is thus to determine whether the person has special reception and procedural [sic.] needs. Any needs emerging or revealed later on during the asylum procedure are to be taken into account’. The Tribunal accepts that like most other systems in the EU, there are some shortcomings in the French system. However, a new action plan to better identify vulnerable persons was launched in 2021. It is important to note that the report states that ‘Only a few points have been implemented since May 2021, such as the creation of a network of “vulnerability referents”, the development of trainings provided by national authorities to NGOs and public stakeholders and the development of specialised accommodation places. They have proven to be effective in Practice’. In the circumstances, the Tribunal finds that based on the evidence before it, the Appellant will be screened for vulnerabilities if transferred to France”.

122. At paragraph [4.39], the IPAT effectively summarises its approach and conclusions as follows:

“[4.39] Having assessed the material facts and circumstances, it is accepted that the Appellant is vulnerable and the report of Dr Giller supports that claim. He is not currently taking any medication for psychiatric illness, nor is there evidence that he is seeing a psychiatrist. He does have complex PTSD and depression. He is taking medication for HIV and latent TB. The evidence before the Tribunal suggests that he would be screened for vulnerability in France and he would have access to appropriate medical care. He would also have the protection of special procedural guarantees given his vulnerabilities. The objective evidence shows that there is a system whereby applicants can access accommodation and financial support. The fact that the Appellant already has a detailed medicolegal report from Ireland will assist him when he is going through the vulnerability screening process. In all the circumstances the Tribunal finds that a transfer to France would not result in the Appellant in this case being subjected to inhuman and degrading treatment and it cannot be said that there is clear evidence that there would be a breach of Article 3 of the ECHR or Article 4 of the Charter. The Appellant will have access to medical care in relation to his mental health and his physical illnesses.”

123. As set out above, when assessing the Applicant’s grounds of challenge, therefore, it is important to look at the full context of the IPAT’s decision and report dated 30th June 2025.

124. As referred to earlier in this judgment, in summary, it was argued on behalf of the Applicant that the reference by the IPAT, for example, at paragraph [4.33] to the question being “whether the Appellant would be able to seek medical treatment on his transfer in relation to his mental health issues and his other physical illnesses” was an example of the Tribunal member asking itself the wrong question, contrary to the judgment in Rawson and it was suggested that the IPAT failed to apply the test established in Rettinger of being “sufficient” or ‘capable of’ establishing a “real risk”.

125. The IPAT decision and report dated 30th June 2025 undoubtedly addressed the very comprehensive submissions which were made to it on behalf of the Applicant.

126. In considering this matter, for the reasons which I have set out earlier in this judgment, I consider, whilst the IPAT may not have referred expressly to the decision in CK (or Jawo), the substance of the assessment met the requirements of Article 4 of the Charter and Article 3 of the ECHR in the context of Dublin III. That assessment – whilst undoubtedly addressing whether the Applicant would suffer inhuman and degrading treatment if he were transferred to France and the situation in France in terms of accommodation etc., – also considered, for example, the individual circumstances of the Applicant, his vulnerability and his particular medical circumstances in addition to finding that there was no evidence of the Applicant having been in contact with the psychological services in Ireland, or having been diagnosed that he had psychiatric illness from a psychiatrist or was being medicated arising from mental health issues.

127. Further, in response to the Applicant’s arguments based on Rawson, it was submitted on behalf of the Respondents that the Applicant’s submissions to the IPAT (in the appeal from the IPO) were centred around arguments around the situation in France as the proposed receiving State rather than any specific (or sole) submission which raised, for example, the individual circumstances of the Applicant, i.e., it was contended that the Applicant in this judicial review application was only now seeking to rely on arguments (arising from the judgment in CK) which were not argued before the IPAT. Rather, it was contended that the Applicant’s arguments before the IPAT referred to the principles established in MSS v Belgium & Greece and NS & ME (and as reflected, for example, in the decision of the CJEU in Jawo) and not, for example, on CK.

128. While generally, it is often a requirement in a judicial review challenge that an applicant must have raised an alleged illegality with a decision-maker in order to allow that body (and any other interested party, if applicable), to address the point (see Lancefort Ltd. v An Bord Pleanála (No. 2) [1998] IESC 14, [1999] 2 I.R. 270 as applied by the High Court (Humphreys J. in Reid v An Bord Pleanála [2021] IEHC 230), I have, in this judgment, reviewed the IPAT’s assessment and its consideration of Article 4 of the Charter (and Article 3 of the ECHR) in the Applicant’s case as a matter of substance rather than deciding the issue on such a procedural argument, as contended for on behalf of the Respondents. Furthermore, the requirement to raise points first with the decision-maker, as a general proposition in challenges brought by way of judicial review, is subject to some exceptions. Given the EU law and domestic law provisions at issue in challenges to transfer decisions, and the consequences for a claimant in such circumstances, this admits of the matter being considered as a matter of substance rather than form.

129. Finally, on behalf of the Applicant, it was submitted that the remedy of certiorari, while an important prerogative remedy, has limitations including, for example, in any case where a court grants an order quashing a decision, it can remit the matter back to the decision-maker to be effectively re-taken. Thus, it was submitted that if the

decision of the IPAT dated the 30th June 2025 was quashed, the six-month time limit which runs from the date of the IPAT decision – arising from Articles 27 and 29 of Dublin III (see the decision of the High Court (Hyland J.) in RG v The IPAT & Ors (No. 1) [2023] IEHC 742) – would not arise as the IPAT could simply make a fresh

decision, on remittal, and the six months within which a transfer was to be effected would run from the date of that (new) decision.

130. Whilst that might be so in a theoretical case, I have determined, for the reasons set out in this judgment, that the Applicant is not entitled to reliefs sought by way of an application for judicial review. Further, most public law remedies are by their very nature ‘limited’ and are, for example, subject to rules and conventions such as standing/locus standi, leave or permission is usually required to commence a judicial review which must reach a threshold standard of ‘arguability’ or ‘substantial grounds’, time limits (with the facility of an extension) are imposed and, in some cases, there is a requirement to seek a certificate for leave to appeal (i.e., it must involve a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken), together with conventions such as the presumption of validity in relation to an administrative decision and the rule against a collateral challenge.

131. In joint cases DPP v Carter & DPP v Kenny [2015] IESC 20, for example, at paragraph (31) of his judgment, O’Donnell J. (as he then was) observed inter alia as follows:

“It is a general and important principle that orders made by bodies having jurisdiction to do so “bear no stamp of invalidity on their face” and may be perfectly effective as a matter of law unless and until quashed by a court of competent jurisdiction. (See Smith v. East Elloe Rural District Council & Ors [1956] A.C. 736). Thus, for example, in Re Comhaltas Ceoltóirí Éireann (unreported; 5th December 1977), it was held by Finlay P. that a planning permission was required to be treated as valid by a District Court hearing a licensing application, and that the Court was not entitled to entertain what would amount to a collateral challenge to it. As it was put in Wade, Administrative Law (Forsyth (ed.)) (Oxford; Oxford University Press; 2000; 8th edition), p. 287, “The court will take an administrative act or order as invalid only if the right remedy is sought by the right person in the right proceedings”.

132. By way of illustration in the context of this case, as referred to earlier, the decision of 2nd April 2025 to refuse the Applicant’s request under Article 17(1) of the Dublin III that his application be determined in Ireland has not been challenged, and, therefore, enjoys the presumption of validity.

CONCLUSION

133. In the circumstances, having regard inter alia to: (i) the individualised assessment carried out by the IPAT; (ii) paragraphs (80) to (87) of the judgment of the CJEU in CK & Ors v Republika Slovenija including the matters addressed and exhibited in the Affidavit of Mr. Gallagher; and (iii) the IPAT’s assessment as to whether a situation of extreme material poverty was applicable to the Applicant’s case, I do not consider that the Applicant had established before the IPAT, or in Dr. Giller’s Medico-Legal report dated 18th September 2023, a real and proven risk of inhuman or degrading treatment affecting him, regardless of any systemic flaws that might be considered to apply in France.

134. Accordingly, and for the reasons outlined in this judgment, I refuse the Applicant the reliefs sought in this application for judicial review.

PROPOSED ORDER

135. I propose to make an order refusing the Applicant’s application for the reliefs claimed by way of judicial review.

136. I shall discuss with the parties the ancillary and consequential matters which arise, including the question of costs at 10:30 on Thursday 27th November 2025.

APPEARANCES

137. Michael Conlon SC and Aodhán Peelo BL appeared for the Applicant instructed by Ferrys Solicitors LLP.

138. David Conlan Smyth SC and Sarah-Jane Hillery BL appeared for the Respondents instructed by the Chief State Solicitor’s Office.

CONLETH BRADLEY

Wednesday 26th November 2025