High Court grants judicial review allowing asylum applicant to stay pending transfer order review.

Neutral Citation No. 2005 IEHC 403

THE HIGH COURT

JUDICIAL REVIEW

[2005 No. 908 J.R.]

BETWEEN

EVELYN MAKUMBI

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Ms. Justice Finlay Geoghegan delivered on the 15th day of November 2005.

1. The applicant is a national of Uganda, who is stated to have arrived in the State on the 16th March, 2005. On the 29th June, a

transfer order was signed on behalf of the respondent pursuant to Article 7 of the Refugee Act 1996 (Section 22) Order 2003 requiring

the applicant to leave the State and go to the United Kingdom pursuant to the provisions of Council Regulations (EC) No. 343/2003.

2. On the 22nd August, 2005, leave was granted by order of the High Court (MacMenamin J.) to apply by way of Judicial Review for a

number of reliefs all of which are directed to preventing the transfer of the applicant to the United Kingdom pursuant to the said

transfer order and requiring that the respondent determine the applicant’s request to have her claim for asylum processed in Ireland.

A notice of opposition was delivered in which it is contended inter alia that the respondent is obliged to give effect to the transfer

order and has no discretion or power not to implement the transfer order or to revoke it or to consider the application to have the

applicant’s claim for asylum determined in this jurisdiction.

Factual background

3. The applicant made a claim for a declaration of refugee status in the State on the 18th March, 2005. She was fingerprinted by

officials of the Refugee Applications Commissioner as part of that process. A EURODAC search was made and it was discovered that

she had previously made an application for asylum in the United Kingdom on the 19th March, 2004.

4. On the 28th March, 2005, that applicant completed a questionnaire for the Refugee Applications Commissioner and in response to

an express question stated that she had not previously made an application for refugee status elsewhere within the EU. The applicant

produced a Ugandan identity card and stated that she had travelled on a Portuguese passport, purchased from an agent, through

Kenya and Amsterdam to Dublin.

5. On the 10th May, 2005, an application was made to the U.K. authorities to take charge of the applicant in accordance with Article

16 (1) (c) of Council Regulation EC No. 343/2003) (the Council Regulation). The U.K. agreed on the 24th May, 2005, to take back the

applicant in accordance with Article 16 (1)(e) of the Council Regulation.

6. On the 16th June, 2005, a letter was sent to the applicant containing the determination of the Refugee Applications Commissioner

(the Commissioner) that”. . The United Kingdom is responsible pursuant to the provisions of Articles 13 and Article 16 (1)(e) of Council

Regulation EC No. 343/2003 for dealing with your application for asylum.” In that letter it was explained to the applicant that Article

16 (1)(e) of the Council Regulation provides that the Member State responsible for examining an application for asylum under the

Regulation is obliged to take back a third country national whose application it has rejected and who is in the territory of another

Member State without permission. The applicant was also informed that the respondent had been notified of the determination with a

view to making arrangements for her transfer to the United Kingdom. She was also informed of her entitlement to appeal the

determination to the Refugee Appeals Tribunal but that such appeal would not suspend her transfer to the United Kingdom.

7. An appeal was lodged on behalf of the applicant by the Refugee Legal Service to the Refugee Appeals Tribunal on the 7th July,

2005. This was determined against the applicant and the determination of the Refugee Applications Commissioner affirmed by decision

of Mr. James Nicholson member of the Refugee Appeals Tribunal on the 18th July, 2005.

8. In the meantime on the 29th June, 2005, a transfer order requiring the applicant to leave the State and go to the United Kingdom

pursuant to the Council Regulation was signed on behalf of the respondent. On the 8th July, 2005, the applicant was sent a letter

from the Repatriation Unit of the Department of Justice, Equality and Law Reform pursuant of the provisions of art.7 (4) a of the

Refugee Act 1996 (Section 22) Order 2003 (“the 2003 Order”) requiring that she present herself to the Garda National Immigration

Bureau at Burgh Quay, Dublin 2, on Monday the 18th July, to make arrangements for her removal to the United Kingdom not later than

the 25th July, 2005. The applicant’s solicitor states on affidavit that following receipt of the determination of the Refugee Applications

Commissioner of the 16th June, 2005, a consultation was arranged with the applicant. At that stage it appears that the applicant

disclosed to her legal advisors that she had made a previous application for refugee status in the United Kingdom in about October,

2000. Her instructions were that such application had been considered and rejected and that she was subsequently deported to

Uganda. She also stated that following her return she was detained and tortured by the authorities in Uganda. She then stated that

she fled once more and returned to the United Kingdom where she was detained and subsequently deported. However, on arrival in

Uganda she was refused leave to land on the basis that she had no documentation to prove her identity. She was then returned to

the United Kingdom where she was informed she could make another claim for asylum which she did on the 19th March, 2004. She

stated that fearing that she would ultimately be sent back to Uganda, she then fled to Ireland where she has remained. It is unclear

from the facts stated in the affidavit whether she arrived in the State earlier than the 16th March, 2005. However, nothing turns on

that in this application.

9. In July, 2005, the Refugee Legal Service was made aware by the applicant that she suffered from clinical depression and has a

history of attempts to take her own life. Reports were obtained from Dr. Cliona McCullagh, area medical officer of the HSE at the

Balseskin Medical Centre, and Dr. Anokwuru Andrew, of St. Brendan’s Hospital, dated the 25th and 26th July, 2005, respectively. Dr.

McCullagh’s report states that the applicant is “a 26 year old woman from Uganda who I have been dealing with for several months

now”. She states that the applicant is attending the psychology service at Balseskin, attending a physiatrist in St. Brendan’s Hospital

and also attending Dr. Geary of the Rotunda hospital. She also expresses the view that the applicant is suffering from depression and

that her deportation would “without question exacerbate that to a level where I would be concerned about her own safety, given her

history of delivering self-harm in the past…” She enclosed the report of Dr. Andrew of the 26th July, 2005.

10. The report of Dr. Andrew records that the applicant was referred to the assessment unit of St. Brendan’s unit on the 28th June,

2005. A provisional diagnosis of depression was made, she was given medication and a subsequent appointment. At the subsequent

appointment she appears to have been interviewed by Dr. Andrew. He records a brief history of her asylum attempts in the U.K.,

deportation, return to the U.K. and subsequent move to Ireland. He records an attempt to commit suicide whilst in the detention

centre which was spotted and prevented and a history of another attempt three years ago by taking an overdose. He then states:

“All through the interview sessions, Evelyn made it clear that in the event that she is sent back to the U.K., she would

definitely kill herself at the first opportunity that she gets. It is my professional opinion that this should not be taken

lightly but with all the seriousness that it deserves. She has demonstrated most of the major symptoms of major

depression and is therefore in need of psychiatric assistance. In addition she does have suicide ideations (sic) with a

positive history of deliberate self-harm”.

11. Dr. Andrew then sets out his medical assessment of her mental state during interview and the then current medication and

concludes:

“Evelyn is clinically depressed with suicidal ideations (sic) and a strong positive history of deliberate self-harm. She is

mentally unwell and would benefit from psychiatric intervention.”

12. The initial arrangements with the U.K. authorities were to transfer the applicant on the 25th July, 2005. This was postponed on

the intervention on the applicant’s behalf of the Irish Refugee Council. The reports of Dr. McCullagh and Dr. Andrew appear to have

been forwarded initially by the Irish Refugee Council to the Dublin Convention Unit of the Refugee Application Commissioners Office.

There were also e-mail exchanges between the Irish Refugee Council and the Repatriation Unit of the Department of Justice, Equality

and Law Reform. On the 28th July a department official informed the Irish Refugee Council that the applicant would be transferred on

the 2nd August. Permission was sought from Dr. Andrew to forward his report to the U.K. authorities so that they could make an

assessment of the correct medical regime for the applicant.

13. On the 28th July, the Refugee Legal Service wrote to the respondent setting out a summary of the applicant’s history, enclosing

the reports of Dr. McCullagh and Dr. Andrew and then made the following submissions and requests:

“I would respectfully submit that the above mentioned medical reports disclosed that transferring my client to the United

Kingdom would expose her to a real and serious danger of committing suicide and accordingly she is not in a fit state to

travel. I would request, Minister, that you exercise your lawful discretion pursuant to Section 22 (7) of the Refugee Act

1996 (as amended) to revoke or amend the Transfer Order. It is further submitted that this is an appropriate case for the

State to exercise its entitlement under Article 3.2 of Council Regulation 343/2003 to examine Ms. Makumbi application for

asylum.”

14. This letter was received on behalf of the respondent on the 2nd August. In the meantime arrangements had been put in place on

the 28th July for the applicant to be transferred to the United Kingdom on the 2nd August. Regretfully on the 31st July, the applicant

took an overdose of sleeping tablets in an attempt to take her own life. She was admitted to St. Brendan’s Hospital and stated to

have been attended by Dr. Serina Condon consultant physiatrist at St. Brendan’s. Dr. Andrew is the SHO to Dr. Serina Condon. By

letter of the 2nd August the respondent was informed of these events by the Refugee Legal Service and the request of the applicant

to make her asylum claim in Ireland repeated.

15. The affidavit sworn on behalf of the respondent states that on the 2nd August, the repatriation unit of the Department informed

the U.K. authorities that the applicant would not be transferred on that date as she had failed to present herself. A new date of the

16th August was scheduled.

16. The applicant was discharged from St. Brendan’s on the 10th August, and attended Dr. McCullagh’s clinic at Balseskin. Dr.

McCullagh furnished a medical report of that date in which she expressed the view that the applicant “did not seem in any way

improved and still demonstrates the symptoms of major depression. She is still in need of strong psychiatric assistance that she is

receiving here in Dublin. It is my medical opinion that she may attempt suicide again if deported and the outcome for her may not be

so favourable.”

17. On the 15th August, 2005, an application was made ex parte to the High Court and an order made (Dunne J.) restraining the

respondent until after Monday the 22nd August, 2005, or further order from taking any steps to transfer the applicant to the United

Kingdom. On the 22nd August, 2005, the High Court made an order, on consent, granting leave and without objection from the

respondent, an order restraining the respondent, his servants or agents pending the trial of the action from taking any steps to

transfer the applicant to the United Kingdom on foot of the Transfer Order signed on behalf of the respondent on the 29th June whilst

the applicant remains a suicidal risk. On the 7th September, 2005, a statement of opposition and a verifying affidavit sworn on behalf

of the respondent by an official of the repatriation unit of the Department were filed and delivered.

18. The respondent has not sought to dispute the medical evidence. Its gravity is expressly recognised by the deponent on behalf of

the respondent. It is asserted that the respondent will advise the U.K. authorities of the applicant’s medical condition and has sought

permission to send to them Dr. Andrews’ report

19. I am satisfied that the medical evidence presented to the respondent on 28th July and subsequently, prima facie indicates that

there exists a real and substantial risk of suicide if the Transfer Order is implemented and in that sense a real and substantial risk to

the life of the applicant. It is in the context of this finding of fact that the legal issues must be considered.

Issues

20. The reliefs in respect of which leave was granted include an order of certiorari of the transfer order signed on behalf of the

respondent on the 29th June, 2005 (“the Transfer Order”). Counsel for the applicant, properly in my view, indicated at the outset of

the hearing that he was not pursuing such relief. It is accepted that under the Council Regulation, the United Kingdom is the Member

State of the E.U. responsible for the applicant. It is also accepted that the applicant’s medical condition was not disclosed to the

authorities prior to the 29th June, 2005. The respondent was entitled on the facts as then disclosed to make the Transfer Order. The

remaining substantive reliefs in respect of which leave was granted are:

b) An injunction restraining the respondent from taking any steps to transfer the applicant to the United Kingdom while

the applicant remains a suicide risk.

c) Declaration that the decision of the Minister to transfer the applicant to the United Kingdom whilst she remains a

suicide risk is ultra vires, void and of no force or effect having regard to s.22 of the Refugee Act 1996 (as amended) and

having regard to the provisions of Council Regulation (EC No. 343/2003).

d) An order of mandamus by way of application for judicial review compelling the respondent to consider the applicant’s

request to have her claim for asylum processed in Ireland.

21. Having regard to the grounds upon which leave was given; the notice of opposition and submissions made by counsel, the primary

issue to be resolved on this application may be identified as follows. Where the respondent has made a transfer order pursuant to

art.7 of the 2003 Order and is subsequently presented for the first time with medical and factual evidence which prima facie indicates

a real and substantial risk of suicide by the applicant if the transfer order is implemented is the respondent, at minimum, under an

obligation pursuant to Article 40.3 of the Constitution and/or ss.2 and 3 of the European Convention on Human Rights Act, 2003 to

consider the new medical and factual evidence and determine whether or not to implement the transfer order?

22. The submission on behalf of the applicant is that at minimum such an obligation exists. On behalf of the respondent it is

contended that no such obligation exists. This rather stark submission in the context of the uncontested medical evidence of the risk

of suicide is made upon the basis that the respondent has no discretion or power not to implement the Transfer Order. It is asserted

that he is bound by the terms of the Council Regulation to effect the transfer of the applicant to the United Kingdom and has no

discretion not to transfer even on the facts herein. Further that as he has no discretion not to implement the Transfer Order he

cannot be under any obligation to consider the medical evidence and decide whether or not to implement the Transfer Order.

23. The submissions made by the parties require consideration of the precise regulatory and statutory scheme.

Regulatory and Statutory Scheme

24. The Council Regulation in Article 1 states that it lays down the criteria and mechanisms by which the Member State responsible

for examining an application for asylum is established. The general principle of the scheme of the Council Regulation as specified in

Article 3.1 is that an application for asylum of a third country national who applies in a Member State shall be examined by a single

Member State which is the Member State responsible in accordance with the criteria of the Council Regulation.

25. By way of derogation from the general principle, Article 3.2 provides that

“…each Member State may examine an application for asylum lodged with it by a third country national, even if such

examination is not its responsibility under the criteria laid down in this Council Regulation. In such an event, the Member

State shall become the Member State responsible within the meaning of this Council Regulation and shall assume the

obligations associated with that responsibility. . . . ”

26. On the facts of this application it is agreed that, in accordance with the criteria of the Council Regulation, the United Kingdom is

the Member State responsible for examining the applicant’s application for asylum. As such, it has obligations under Article 16 to “take

charge of” or “take back” the applicant. It has agreed to take back the applicant under Article 16 (1) (e) of the Council Regulation.

This provides that the Member State responsible for examining an application shall be obliged to

“(e) Take back under the conditions laid down in Article 20 a third country national whose application it has rejected and

who is in the territory of another Member State without permission.”

27. The conditions in Article 20 referred to in Article 16 (1) (e) include Article 20 (1) (d) “

(d) A Member State which agrees to take back an asylum seeker shall be obliged to readmit that person to its territory.

The transfer shall be carried out in accordance with the national laws of the requesting Member State, after consultation

between the Member States concerned, as soon as practically possible, and at the latest within 6 months of acceptance

of the request that charge be taken by another Member State or of the decision on an appeal or review where there is

suspensive effect:”

28. Article 20.2 provides that where a transfer does not take place within the 6 months time limit (or certain extensions which are not

relevant to any issue herein) “responsibility shall lie with the Member State in which the application for asylum was lodged”. Hence, a

failure to effect a transfer within 6 months may result in a change in the Member State responsible under the Council Regulation.

29. The Council Regulation has direct effect in Ireland. However, s.22 of the Act of 1996 authorises the respondent to make “such

orders as appear to him . . . to be necessary or expedient for the purpose of giving effect” inter alia to the Council Regulation.

Section 22 (2) provides that certain matters may be specified in an order made under s. 22 (1). The Minister made the Refugee Act

1996 (Section 22) Order 2003 (SI No. 423 of 2003) (“ the 2003 Order”) and one amending order namely the Refugee Act (Section 22)

Amendment Order 2004 ( SI No. 500 of 2004) under s.22 of the Act of 1996. The latter is not relevant to the issues herein.

30. In relation to a person, such as the applicant who has made an application for asylum in the State, under s. 8 of the Act of 1996,

the scheme established by the 2003 Order for the purpose of giving effect to the Council Regulation involves the following essential

steps:

i. A determination by the Commissioner under art. 4 of the 2003 Order whether in accordance with the Council Regulation

the application should be examined in the State.

ii. Where a determination is made by the Commissioner that an applicant should be transferred to another Member State

pursuant to the Council Regulation notification to that person in the form set out in the schedule to the 2003 Order and

to the Minister.

iii. An appeal on limited grounds only to the Refugee Appeals Tribunal against the determination of the Commissioner. The

appeal is limited to the issue as to whether or not the Commissioner has properly established the Member State

responsible for examination of the application in accordance with the criteria set out in chapter III of the Council

Regulation.

iv. The transfer of a person pursuant to a “transfer order” made under art. 7. Article 7 (1) provides: “Subject to the

subsequent provisions of this article, the Minister may by order (in this Order referred to as a “transfer order”), in the form

set out in schedule 2 or a form to the like effect, require an applicant in respect of whom a determination under article 4

that he or she should be transferred to a Council Regulation country has been made, to leave the State on or before such

date or within such period as may be specified in the order and to go to the relevant Council Regulation country.”The

remaining sub-paragraphs of article 7 provide for notification to the person in writing of the making of the transfer order;

certain matters to be stated in such notice; authorisation to require the person to do certain matters for the purpose of

ensuring his transfer and the power to arrest, detain and place a person on an aircraft ship etc. leaving the State.

Council Regulation and Discretion

31. The first issue is whether or not the respondent retains a discretion not to implement a transfer order made under article 7 (1) of

the 2003 Order.

32. Counsel for the respondent sought to rely upon the Council Regulation as precluding the existence of such a discretion. I have

concluded that the Council Regulation does not preclude the existence of such a discretion if it exists under the national law of

Ireland for the following reasons:

33. I have concluded that the scheme of the Council Regulation is to impose on the United Kingdom, as the responsible Member State,

an obligation to take charge or take back the applicant and to readmit the applicant to its territory and gives to Ireland a right but

not an obligation to transfer the applicant to the United Kingdom. My conclusion is based upon the following analysis.

34. The United Kingdom is the Member State responsible for examining the application for asylum of the applicant in accordance with

the criteria of the Council Regulation. Hence, it is obliged to either take charge of or take back the applicant under Article 16 (1) of

the Council Regulation. It has agreed to take back the applicant under Article 16 (1) (e) and hence must do so under the conditions in

Article 20. Under Article 20 (1) (d) the United Kingdom is now obliged to readmit the applicant to its territory.

35. There is, however, no provision in the Council Regulation which obliges Ireland to transfer the applicant to the United Kingdom. It

has a right to transfer the applicant. Article 20 (1) (d) specifies certain conditions under which the transfer shall take place and which

include placing a limit on the time during which Ireland may exercise that right. If it fails to transfer the applicant within 6 months (or

such extended period as may be applicable) then Ireland may become the Member State responsible and lose its right to transfer the

applicant.

36. The conditions in Article 20 must be considered in conjunction with the derogation in Article 3.2 of the Council Regulation. This

permits Ireland, by way of derogation from the principle of a single examination by the Member State responsible, to examine the

applicant’s application for asylum. Article 3.2 does not either specify or limit the time at which such decision may be made on behalf

of Ireland. Article 3.2 expressly envisages that such decision might be taken after the Member State responsible has been requested

to take charge or take back the applicant insofar as it obliges a Member State who make such a decision to inform “the Member State

who has been requested to take charge or to take back the applicant”.

37. Counsel for the respondent submitted that whilst Ireland has opted to exercise the permitted derogation in Article 3.2 that it has

exclusively delegated to the Commissioner, by art.4 of the 2003 Order, the power to determine whether any particular application

should be examined in Ireland. It was further submitted that once the Commissioner has determined that a particular application for

asylum should not be examined in Ireland that Ireland then becomes obliged under the terms of the Council Regulation to transfer the

applicant and hence the respondent has no discretion not to transfer.

38. The issue as to whether or not there has been a valid exclusive delegation to the Commissioner to determine whether an

application for asylum should be examined in Ireland pursuant to the derogation permitted in Article 3.2 was not fully argued before me

and as its resolution does not appear necessary to determine the issues herein, I wish to expressly reserve my position on the issue

until it is fully argued and material. The determination of the Commissioner of herein of 16th June 2005 as notified to the applicant

was that”. . The United Kingdom is responsible pursuant to the provisions of Articles 13 and Article 16 (1)(e) of Council Regulation EC

No. 343/2003 for dealing with your application for asylum.” The same letter indicates an intention to transfer the applicant to the

United Kingdom. Even if it were assumed that this constituted a decision by the Commissioner not to examine the application in

Ireland pursuant to Article 3.2 and that such determination had been validly delegated to her it does not appear to me to follow that

Ireland is under an obligation to transfer the applicant.

39. Counsel for the respondent also sought to rely on the reference to “the obligation to transfer the applicant” in the notification to

be given to an applicant under Article 19(1). That article only applies to a situation where a Member State has agreed to take charge

in Article 16(1) (a) and does not apply to the applicant herein as the United Kingdom has agreed to take her back under Article 16(1)

(e). Her potential transfer is in accordance with Article 20 and not Article 19. The equivalent notification provision in Article 20(1)(e)

states;

“the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the

Member State responsible.”

40. The Council Regulation does not address either the person by whom or time at which differing decisions in the process within a

Member State should be taken. As already stated there is nothing in the Council Regulation which expressly obliges Ireland to transfer

the applicant as a person whom the United Kingdom has agreed to take back under Article 16(1) (e). On the contrary, the transfer is

subject to a further mandatory condition in Article 20(1)(d) that “the transfer shall be carried out in accordance with the national law

of the requesting State . . . ”. A national authority, such as the respondent herein, seeking to transfer is subject to compliance with

the relevant national law. If the national law of Ireland prohibits the carrying out of the transfer of a particular applicant (as is

contended on behalf of the applicant herein ) then it does not appear to me that there is anything in the Council Regulation which

prevents the respondent determining, even at a late stage in the process, not to effect a transfer. Article 20(1)(d) expressly requires

that the transfer be carried out in accordance with national law.

41. My conclusion on the general scheme of the Council Regulation is similar to the view expressed by Clarke J in (Unreported, the

High Court 10th December 2004). Counsel for the respondent Xayle (a minor) v. The Refugee Applications Commissioner submitted

that the view expressed by Clarke J. was not based upon a full analysis of the Council Regulation. Nevertheless having carried out

what appears to be a full analysis I reached the same conclusion.

42. Finally, the fact that the respondent has made a transfer order under art. 7 of the 2003 Order does not appear relevant to a

consideration of the issue as to whether the Council Regulation precludes the existence of a discretion not to implement the Transfer

Order. As already stated, the Council Regulation does not address either the person by whom or time at which differing decisions in

the process within a Member State should be taken.

43. Accordingly, it appears to me that the issue of the existence of a discretion in the respondent not to implement the Transfer

Order made in respect of the applicant herein must be determined by considering the applicable Irish law.

Discretion under Irish Law

44. I am only considering the existence of such a discretion in the factual circumstances which pertain to this application. Essentially

those are that subsequent to the making of the Transfer Order by the respondent both medical information has come available and

events occurred which prima facia indicate that there is a real and substantial risk of suicide and in that sense a real and substantial

risk to the life of the applicant if the Transfer Order is implemented.

45. Counsel for the respondent accepts that it is the respondent through his officials who remains responsible for the implementation

of the Transfer Order.

46. Neither s. 22 of the Act of 1996 nor the 2003 Order contains an express provision imposing a duty on the respondent or any other

person to implement a transfer order. The 2003 Order contains express powers to take different actions in relation to an applicant for

the purpose of achieving the transfer of the person to another Member State pursuant to a transfer order. It appears to me by

necessary implication, when the 2003 Order is construed for the purpose of giving effect to the Council Regulation there is both a

power and duty on the respondent, through his officials or agents to implement a transfer order.

47. Insofar as the 2003 Order either gives powers to the respondent or imposes duties express or implied on the respondent there is a

curious feature to be noted. It is the respondent himself who by making the 2003 Order has conferred those powers and duties on

himself. He is authorised by the terms of s. 22 of the Act of 1996 to do so. In accordance with the well-known presumption of

constitutionality as stated by Walsh J. in East Donegal Cooperative v. the Attorney General [1970] I.R. 317 such powers and duties

must be both construed and carried out in accordance with the principles of constitutional justice. In that case at p. 341 Walsh J.

stated:

“… the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation and

construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures,

discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be

conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles

would be restrained or corrected by the courts.”

48. The status of the applicant in the State may be relevant to what is required by the principles of constitutional justice in any

dealings with her. The applicant has made an application for asylum under s. 8 (1) of the Refugee Act 1996. Section 9 (2) of the Act

of 1996 (as amended) gives her a statutory right to remain in the State until the occurrence of one of the events set out in that

subsection. It is not clear to me in the regulatory and statutory scheme whether or not the applicant’s right to remain in the State

pursuant to s. 9(2) of the Act of 1996 has terminated. There is no evidence that any of the events set out in s. 9(2) (as amended)

has occurred. However, the respondent has made a transfer order under art.7 of the 2003 Order. Neither counsel made submissions

on the applicant’s status in the State at the date of commencement of the proceedings. Even if the applicant no longer has a

statutory right to remain in the State (which I am not holding) she is not a person without rights in the State. The Supreme Court so

held in the Article 26 reference In re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360. The Court considered the nature

of such rights of a person not entitled to be in the State and against whom a deportation order had been made in the context of the

power of detention in s. 5 (1) of the Bill of 1999 (now the Illegal Immigrants (Trafficking) Act 2000). At p. 410 the court stated:

“It follows that a person who is not entitled to be in the State cannot enjoy constitutional rights which are coextensive

with the constitutional rights of citizens and persons lawfully residing in the State. There would however, be a

constitutional obligation to uphold the human rights of the person affected which are recognised, expressly or by

implication, by the Constitution although they are not coextensive with the citizen’s constitutional rights.”

49. At issue in this application is perhaps the most fundamental of such human rights, the right to life expressly recognised by the

Constitution in Article 40.3.2.

50. Hence, even if the applicant is a person who is not now entitled to be in the State, the respondent in exercising the power or

duty to implement the Transfer Order is obliged to uphold her right to life as guaranteed by Article 40.3.2. A constitutional

interpretation of the powers which the respondent may confer on himself by s.22 of the Act of 1996 necessitates an implicit power

not to implement a transfer order where the protection of the life of the person to whom it applies so requires. There is nothing in the

wording of the 2003 Order which precludes such an implicit power. Hence, it appears to me that Article 7 of the 2003 Order must be

construed as including not only an implicit power and duty to implement a transfer order but also an implicit power or discretion not to

implement the transfer order, where the respect or protection of the right to life of a person to whom it relates so requires.

51. Counsel for the applicant also relied upon Article 2 of the European Convention on Human Rights and Sections 2 and 3 of the

European Convention on Human Rights Act 2003. Section 2 of the Act of 2003 requires this court in interpreting and applying any

statutory provisions (which includes a statutory instrument) to do so in a manner compatible with the State’s obligations under the

Convention provisions. This is subject to the rules of law relating to interpretation and application. Under s.3 of the Act of 2003 the

respondent is obliged to perform his functions under the 2003 Order and Act of 1996 in a manner compatible with the State’s

obligations under the Convention provisions. I am satisfied that it would not be in breach of any rule of interpretation to construe the

powers and/or duties of the respondent in relation to the implementation of a transfer order under the 2003 Order as including a

discretion not to implement a transfer order where to do so would be in breach of the State’s obligations under Article 2 of the

Convention.

52. The supreme Court in In re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 confirmed the right of an applicant for

asylum to have decisions which affect him/her under the relevant statute taken in accordance with the principles of constitutional

justice and fair procedures. As the respondent has power to decide not to implement a transfer order then constitutional justice

requires that on the medical evidence presented on behalf of the applicant in the letters of 28th July, 2005, 2nd August, 2005, and

report of Dr. McCullagh of 10th August, 2005, the respondent now consider and determine in the context of the applicant’s rights

under Article 40.3 of the Constitution and Article 2 of the European Convention on Human Rights whether the transfer order in respect

of the applicant should be implemented.

53. In reaching the above conclusions I wish to make clear that I am not concluding that the medical evidence and facts pertaining to

the applicant necessarily warrant a decision by the respondent to exercise the discretion which I have found to exist not to

implement the Transfer Order. That is a matter for the respondent. To date the respondent has refused to consider the request made

on behalf of the applicant not to implement the Transfer Order upon the basis that he has no discretion not to do so. The existence

or not of that discretion and the respondents obligation to consider the application not to implement the Transfer Order are the only

issues which I am deciding. It is open to the respondent to take such steps as he considers appropriate and consistent with

constitutional justice and according fair procedures to the applicant to examine and test the evidence presented.

Revocation of Transfer Order

54. Counsel for the applicant submitted that the respondent has an express power of revocation of the Transfer Order under s. 22 (7)

of the Act of 1996.

55. Section 22 (1) of the Act of 1996 (insofar as relevant) (as amended by Section 7 (1) of the Immigration Act 2003) and s. 22 (7)

provide:

“22- (1) the Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of

giving effect to

....

(b) Council Regulation (EC) No. 343/2003

....

(7) the Minister may by order amend or revoke an order under this section (other than an order under subsection (6))

including an order under this subsection.”

56. The 2003 Order is made pursuant to s. 22(1). The Transfer Order made by the respondent in relation to the applicant is made

pursuant to art. 7 of the 2003 Order.

57. Section 22 (2) of the Act of 1996, insofar as relevant to the transfer of a person, as distinct from an application for asylum to a

Member State provides

“(2) without prejudice to the generality of subsection (1) an order under this section may ….

(f) provide that where an application has been transferred to a convention country for examination or to a safe

third country the person concerned shall go to that convention country or to that safe third country,

…..

(i) specify the measures to be taken for the purpose of the removal of a person whose application has been

transferred to a convention country or a safe third country from the State to that convention country or safe third

country including, where necessary, the temporary detention or restraint of the person and

…”

58. Article 7 of the 2003 Order is made for the purpose of providing for the above matters. Article 7 (1) provides

“7-(1) subject to the subsequent provisions of this article, the Minister may by order (in this Order referred to as ‘a

transfer order’) in the form set out in schedule 2 or a form to the like effect, require that an applicant in respect of whom

a determination under Article 4 that he or she should be transferred to a Council Regulation country has been made, to

leave the State on or before such date or within such period as may be specified in the order and to go to the relevant

Council Regulation country.”

59. Section 22 of the Act of 1996 makes no reference to “a transfer order”. It is only a concept introduced by art. 7 of the 2003

Order. An order made under s. 22 of the Act of 1996 is a statutory instrument. A statutory instrument is defined in s. 1 of the

Statutory Instruments Act 1947 as meaning “an order, Council Regulation, rule scheme or bylaw made in exercise of a power

conferred by statute.” An order made under s. 22 comes within that definition.

60. The express power of revocation given to the Minister under s. 22 (7) relates to an order made under s. 22 i.e. a statutory

instrument. An order made by the respondent under art. 7 (1) of the 2003 Order requiring a person such as the applicant to leave the

State is not such an order. Hence the express power of revocation in s. 22 (7) does not apply to a transfer order made under art.7

(1) of the 2003 Order.

61. Counsel for the applicant in the alternative submitted that the Minister has by the necessary implication a power to revoke a

transfer order made under art.7 (1) of the 2003 Order. He submits that the existence of such a power is confirmed by the terms of

art. 8 (9) of the 2003 Order. Article 8 provides for an appeal against the determination by the Commissioner that a person should be

transferred to a Council Regulation Country. Article 8 (1) requires, inter alia that where the Tribunal sets aside the determination of

the Commissioner it shall send a copy of the decision to the Minister, the respondent herein. Article 8 (9) then provides

“(9) on receipt of a notice under paragraph (1) that the Tribunal has set aside the determination of the Commissioner, the

Minister shall, where necessary, revoke the transfer order and arrangements will be made for the reception of the

applicant into the State.”

62. The submission is that this article imposes on the respondent, in the circumstances described, the obligation to revoke the

transfer order. It is submitted that unless the respondent already has an implicit power to revoke the Transfer Order the article could

not impose on him an obligation to do so.

63. It is necessary to consider that submission in the context both of the scheme established by the Council Regulation as

implemented by s. 22 of the Act of 1996 and the powers conferred on the respondent thereunder. There is nothing in either the

Council Regulation or s. 22 of the Act of 1996 which precludes the Minister giving to himself a power to revoke a transfer order made

under Article 7 (1) of the 2003 Order. As already pointed out s. 22 does not expressly provide for the making of transfer orders. It is

one of the measures decided upon by the Minister for the purpose of removing a person from the State to a Council Regulation

Country. I have already determined that the Minister retains a discretion to decide not to implement a transfer order. It does not

necessarily follow that every decision not to implement would necessitate a decision to revoke a transfer order. For example, a person

might be very seriously but temporarily ill such that a decision might be made not to implement a transfer order for a period of say 2

weeks to permit recovery. In such an example if the 6 month period specified in Article 20 (1) (d) of the Council Regulation had not

expired there could remain an intention to transfer the person once recovered. However, if the particular circumstances giving rise to

the decision not to implement a transfer order are such that it is a permanent decision or indeed a decision not to implement for a

period which is in excess of the period permitted by Article 20 of the Council Regulation then by necessary implication the respondent

must have the power to revoke a transfer order made. Where the decision of the respondent is a permanent decision not to

implement a transfer order then the revocation of a transfer order appears no more than the giving effect to that decision in the

precise statutory scheme which the respondent has created by providing for transfer orders in the 2003 Order. It must follow, by

necessary implication that he has the power to do this to regularise the applicant’s position within the country. If not there would

remain in being a transfer order which the respondent did not intend to implement.

64. Similarly, if the six month period expires under Article 20(1) (d) of the Council Regulation (and none of the circumstances which

extend the time apply) without a transfer being effected (even without a decision not to implement) then under Article 20 (2) of the

Council Regulation, Ireland becomes responsible for examination of the application for asylum. In such circumstances it again appears

by necessary implication to regularise an applicant’s position that the respondent must have the power to revoke a transfer order. If

not there would continue to exist a meaningless transfer order as the State is no longer entitled to act upon it.

65. Further when a transfer order relates to a person, such as the applicant herein who has made an application for asylum in the

State under s. 8 of the Act of 1996 such person has a statutory right to remain in the State in accordance with s. 9 of the Act of

1996. Constitutional justice would appear to require that such applicant should not have extant against him or her a transfer order

either which it is not intended to implement or which the State is not entitled to implement by reason of the fact that it has become

responsible for the applicant under Article 20 (2) of the Council Regulation. In such circumstances the applicant’s right to

constitutional justice and fair procedures appears to require by necessary implication the power to revoke a transfer order made under

art. 7 (1) of the 2003 Order.

66. Accordingly I have concluded that by necessary implication to the express provisions of art.7 of the 2003 Order the respondent

has an implicit power to revoke a transfer order either where there is a decision not to implement the transfer order or where under

the Council Regulation Ireland has become responsible for the application for asylum.

Examination of Application for Asylum in State

67. The final relief sought on behalf the applicant is an order of mandamus compelling the respondent to consider the applicant’s

request to have her claim for asylum examined in Ireland.

68. On the facts herein a separate decision as to whether the applicant’s application for asylum should be examined and processed in

the State appears unnecessary for the following reasons. The applicant’s request for such a decision is based on the same facts as

her request not to implement the Transfer Order. It was not submitted that the applicant has any greater or differing legal entitlement

to a decision in her favour on her request to examine her application for asylum in the State than on her request not to implement the

transfer order. I have held that the applicant is now entitled, as a matter of constitutional justice, to have her request not to

implement the Transfer Order by reason of the medical reports and facts to which they refer considered and determined by the

respondent.

69. If following such consideration the respondent determines not to implement the Transfer Order then the applicant will not be

transferred to the United Kingdom. The applicant will then be in the State as a person who has made an application for asylum under

s. 8 of the Act of 1996 and who is not being transferred to the Member State responsible in accordance with the criteria of the

Council Regulation. In such circumstances, without the necessity of any further decision by the respondent or indeed the

Commissioner it appears that under the regulatory and statutory scheme created by the Council Regulation and Act of 1996 the

applicant would then be a person with an outstanding application for a declaration of refugee status under s. 8 of the Act of 1996

which she is entitled to have processed and determined in accordance with the Act of 1996. Further, Ireland will at some point (not

having transferred her within the time limit in Article 20) automatically become the Member State responsible without the necessity of

any positive decision to examine the application pursuant to the permitted derogation in Article 3.2 of the Council Regulation.

70. If, however, following a consideration of the medical evidence and application not to implement the Transfer Order in accordance

with the principles in this judgment the respondent decides to implement the Transfer Order then as already stated no submission was

made that the respondent is obliged on some different ground to determine (if he has the power to do so which I am not holding) that

her application for asylum be examined in the State.

Reliefs

71. Having regard to this judgment the reliefs I would propose granting are:

1. An injunction restraining the respondent from taking any steps to transfer the applicant to the United Kingdom pending

the determination of the application made on the 28th July, 2005, not to implement the Transfer Order.

2. A declaration that the respondent has discretion not to implement the Transfer Order made under article 7(1) of the

Refugee Act 1996 (Section 22) Order 2003 (SI No. 423 of 2003) where to do so would be in breach of a right of the

applicant protected by Article 40.3 of the Constitution or Article 2 of the European Convention on Human Rights.

3. A declaration that on the facts of this application constitutional justice requires that the respondent now consider and

determine the request of the applicant not to implement the Transfer Order made in respect of her on 29th June 2005.

72. As these reliefs differ from the specific reliefs sought I will hear counsel on the proposed reliefs in the light of the judgment before

finalising same.

Addendum

73. Having heard Counsel on the proposed reliefs I have determined that in lieu of that proposed at 2 above will be

A declaration that the respondent has discretion not to implement a transfer order made under article 7(1) of the Refugee

Act 1996 (Section 22) Order 2003 (SI No. 423 of 2003).

74. I will also grant the following additional declaration

A declaration that the respondent has an implied statutory power to revoke a transfer order made under article 7(1) of

the Refugee Act 1996 (Section 22) Order 2003 (SI No. 423 of 2003).