Appeal dismissed; Court of Appeal defers interpretation of Dublin III data protection rights to CJEU.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 179

Record No. 2016/436

Peart J.

Birmingham J.

Hogan J.

BETWEEN/

BS AND RS

APPELLANTS

- AND -

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

- AND -

THE REFUGEE APPLICATIONS COMMISSIONER

NOTICE PARTY

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of June 2017

1. At the heart of this appeal lies the question of the extent to which applicants for international protection are entitled to invoke

certain data protection provisions provided for in EU law for the purpose of challenging the validity of certain requests for information

sent from one Member State to another. While some may think it surprising that an EU regulation governing the inter-state allocation

of jurisdiction in respect of asylum requests should concern itself with such matters, that is not my affair. Our task is simply to apply

EU law as we find it: if the result is thought to be inconvenient or unsatisfactory, then this is a matter which the European Union

legislator can address in due course.

2. The issues which arises in this appeal have been already set out in the judgment of Peart J. I would also gratefully adopt his

summary of the facts.

The Dublin III Regulation

3. The Dublin system has now been in force for some 20 years since the original Dublin Convention was signed in 1990 and which

subsequently came into force in 1997. The establishment of the Dublin system reflected the need for a co-ordinated response on the

part of the Member States to the huge and ever increasing logistical demands which the operation of the asylum system placed upon

them. In particular, the Dublin system sought to provide clear rules regarding the allocation of potentially overlapping asylum claims in

different countries so that in broad terms the Member State where either fingerprints are stored or an asylum claim was first made

has principal responsibility for determining the claim for international protection.

4. The Dublin III Regulation (Regulation No. 604/2013) is the latest legislative endeavour in this regard. Supplementing and refining the

earlier Convention and, in more recent times, Regulations, Dublin III establishes the criteria and mechanisms whereby the appropriate

Member State responsible for processing individual asylum claims can be determined. While it is, in many respects, an inter-State

measure, it also contains a variety of procedural and substantive safeguards designed to protect the rights of those seeking

international protection. In this latter respect, it is clear from the recent case-law that Dublin III goes further in providing such

safeguards for individual applicants for international protection as compared with, for example, Regulation No. 343/2003 (“the Dublin II

Regulation”) which preceded it: see, e.g., the comments of Advocate General Sharpston in Case C-63/15 Ghezelbash v.

Staatssecretaris van Veiligheir en Justitie EU:C: 2016: 409 at para. 53.

5. The system as it has evolved is admittedly a complex one. The issues which I believe arise on this appeal are in their own way

ample testament of this. The real question which arises in this appeal is whether the information sharing provisions of Article 34

create enforceable legal rights which these applicants can potentially enforce. Before proceeding further a few words of contextual

detail are nonetheless in order.

6. The Dublin Regulations are, of course, part of the backbone of the Common European Asylum System (“the CEAS”). Both the

Schengen system and two major legislative instruments are form essential parts of that CEAS architecture.

7. The first of these instruments, Regulation No. 603/2013 (“the Eurodac Regulation”) provides for the establishment of a central

fingerprint database (in fact, such a system has been in operation since 2003). All asylum seekers are required to have their

fingerprints taken and the Eurodac registry will then establish whether the applicant has already applied for asylum in another EU

member state, or, indeed, illegally transited through that state. Although Ireland is not part of the Eurodac Regulation, Article 9 of

Dublin III nonetheless provides for the collection and comparison of all fingerprint data of applicants for international protection.

8. The second is the Visa Information System provided for Regulation (EC) 767/2008 (“the VIS Regulation”). Article 21 of the VIS

Regulation provides for the exchange of information between the authorities of the Member States (such as photographs or details

regarding the duration of stay) in relation to asylum applicants which goes beyond the exchange of fingerprints provided for in

Eurodac. The VIS Regulation is, however, part of the development of the Schengen acquis to which neither Ireland or the United

Kingdom have elected to take part (see recitals 29 and 30), so it does not apply to them.

Article 34(4) of the Dublin III Regulation

9. One of the important aspects of the Dublin system is the provision which is made in Article 34 for information sharing as between

Member States. Article 34 is itself located in Chapter VII of the Regulation which is headed “Administrative Cooperation”. At the heart

of the present appeal is the contention advanced by the applicants that the arrangements governing information exchange as

between Member States gives rise – at least in the present case – to a justiciable controversy and individual rights which they can

enforce. Their case, after all, is that the information requests submitted by Ireland to the United Kingdom in respect of the applicants

did not comply with the requirements of Article 34(4), with the result – it is said – that personal information concerning them was

transmitted to the Irish immigration authorities.

10. The first question, therefore, is whether the provisions of Article 34 give rise to enforceable legal rights at the hands of

prospective transferees such as these applicants. The related question of whether the Dublin III Regulation conferred any individual

rights was considered in two recent decisions of the Court of Justice in Case C-63/15 Ghezelbash v. Staatssecretaris van Veiligheir en

Justitie EU:C: 2016: 409 and Case C-155/15 Karim v. Migrationsverket EU:C: 2016: 410.

11. In Ghezelbash the applicant was an Iranian national who had his asylum claim in the Netherlands rejected by reason of a “take

back” request which had been accepted by France pursuant to Article 12(4) of Dublin III. The applicant then submitted new

information to the effect that he had returned to Iran from France for over three months and that, therefore, his asylum application

should be determined by the Dutch authorities, as this was the place where he had first made an asylum request.

12. The Court of Justice held that Article 4 of Dublin III conferred a right on the applicant to be informed of the applicable criteria

governing the determination of the relevant responsible Member State. The Court added that the effective remedy provisions of

Article 27 should be interpreted as giving those seeking international protection the entitlement to request that a national court

suspend the implementation of the transfer decision pending the outcome of any appeal.

13. Critically, however, the Court laid considerable emphasis on the terms of Recital 19 of the Dublin III Regulation which provides:

“In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an

effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in

accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure

that international law is respected, an effective remedy against such decisions should cover both the examination of the

application of this Regulation and of the legal and factual situation in the Member State to which the applicant is

transferred.”

14. The Court ultimately held that, in view of this recital and other provisions of Dublin III itself, it was clear that “the EU legislature

has introduced or enhanced various rights and mechanisms guaranteeing the involvement of asylum seekers in the process for

determining the Member State responsible”, in particular in compared to the previous regime which operated under Dublin II. The Court

further added (at para. 57):

“However, the Court has previously held, in the context of Regulation No 343/2003, that the EU legislature did not intend

that the judicial protection enjoyed by asylum seekers should be sacrificed to the requirement of expedition in processing

asylum applications (see, to that effect, judgment of 29 January 2009 in Petrosian, C 19/08, EU:C:2009:41, paragraph

48). That finding applies, a fortiori, with regard to Regulation No 604/2013, as the EU legislature significantly enhanced,

by that regulation, the procedural safeguards granted to asylum seekers under the Dublin system.”

15. The Court thus concluded that the effective remedy provisions of Article 27(1) of Dublin III should be interpreted as meaning that

an asylum seeker was entitled to plead in an appeal against a transfer order that the relevant criteria specified in Chapter III of Dublin

III were incorrectly applied. The decision in Karim was in similar terms.

16. In his judgment in the High Court, Humphreys J. took these decisions as his starting point. He noted that in her opinion in these

cases (delivered on 17th March 2016), Advocate General Sharpston had concluded that the transfer criteria in Article 7 to Article 15

in Chapter III of Dublin III were subject to review. He concluded that this “strongly suggests that other Articles of the Regulation are

not properly matters for review at the suit of an individual aggrieved litigant”, giving as an example here the decision of a Member

State to accept a transfer, as this was not a transfer decision and was not therefore subject to review under Article 27(1), a point

which – as he noted – Advocate General Sharpston had expressly made in her opinion in Karim (at par. 42).

17. For my part, I cannot help thinking that this may represent something of an over-interpretation of the decisions in both

Ghezelbash and Karim. While it is true that the Advocate General observed (at para. 72) in Ghezelbash that the “possibilities for

challenging the application of the Chapter III criteria are not unlimited”, she also stated (at para. 70):

“…it seems to me over-simplistic to describe the Dublin III Regulation purely as an inter-State instrument. While certain

inter-State aspects indubitably remain, the legislator has introduced and reinforced certain substantive individual rights

and procedural safeguards.”

18. Turning next to Article 34, it is clearly aimed at intra-State information sharing, something which in itself would suggest that no

such rights were intended to be created. At the same time, Article 34(2) provides that the information referred to at Article 34(1)

may only cover certain types of personal information, such as names, travel documents, identity papers, places of residence and so

forth. The wording of Article 34(2)(“…may only cover..”) suggests that applicants for international protection are entitled to object in

the event that the request or the answers supplied were to go further than this.

19. Article 34(3) permits the requested State to refuse to grant the information sought where, inter alia, the communication of such

information “is likely to harm its essential interests or the protection of the liberties and fundamental rights of the person concerned or

of others.” The wording of this provision would in itself suggest that it contains procedural and substantive safeguards upon which

individuals likely to be affected by the operation of this inter-State information exchange system can, in principle at least, rely.

20. Article 34(4) is, of course, the critical provision so far as the present appeal is concerned. It provides:

“Any request for information shall only be sent in the context of an individual application for international protection. It

shall set out the grounds on which it is based and, where its purpose is to check whether there is a criterion that is likely

to entail the responsibility of the requested Member State, shall state on what evidence, including relevant information

from reliable sources on the ways and means by which applicants enter the territories of the Member States, or on what

specific and verifiable part of the applicant’s statements it is based. It is understood that such relevant information from

reliable sources is not in itself sufficient to determine the responsibility and the competence of a Member State under this

Regulation, but it may contribute to the evaluation of other indications relating to an individual applicant.”

21. At the hearing of the appeal, counsel for the Minister acknowledged that the requests which were transmitted in the instant

cases did not, in terms, comply with the specific letter of Article 34(4) in that in particular it did not set out the grounds upon the

request for based. One might nonetheless observe that, as Humphreys J. put it, the reasons for the request was at the same implicit

therein, as given our geographical contiguity with the United Kingdom, it was not unreasonable to suppose that Albanian asylum

seekers might well have at least transited through that Member State before claiming international protection in this State.

22. Articl3 34(7) provides that the information shall be used only by the appropriate authorities for the purposes of determining

international protection requests. Article 34(8) requires Member States to maintain up to date information. It is finally necessary to

draw attention to the terms of Article 34(9):

“The applicant shall have the right to be informed, on request, of any data that is processed concerning him or her.

If the applicant finds that the data has been processed in breach of this Regulation or of Directive 95/46/EC, in particular

because they are incomplete or inaccurate, he or she shall be entitled to have them corrected or erased.

The authority correcting or erasing the data shall inform, as appropriate, the Member State transmitting or receiving the

information.

The applicant shall have the right to bring an action or a complaint before the competent authorities or courts or tribunals

of the Member State which refused the right of access to or the right of correction or erasure of data relating to him or

her.”

The complaints of the applicants

23. The complaints of the applicants in the present appeals is that Ireland did not comply with the requirements of Article 34 in that it

did not specify the reasons for the request in the manner contemplated by Article 34(4). They further state that the United Kingdom

then supplied personal information concerning them to the Irish authorities in a manner which was not authorised by Article 34, in part

at least because it went further than the information envisaged by Article 34(2), but also because of the invalidity of the original

Article 34(4) request. They then submit that since the information so transmitted constitutes personal data which was transmitted in

breach of the Dublin III Regulation, they are entitled by virtue of Article 34(9) to have such information erased and, accordingly,

excluded from consideration by the Irish authorities.

24. This all leads to the ultimate submission that the decisions of the Refugee Appeals Tribunal – which acted in both instances on

foot of information supplied by the UK authorities –to the effect that the applicants in these proceedings should be taken back by the

UK under the terms of Dublin III should be quashed.

25. At first blush, the present applications might be thought by some to constitute examples of “frivolous or vexatious” applications

for judicial review blocking the smooth operation of the Dublin System in respect of which Advocate General Sharpston was properly

concerned in her opinion (at para. 71) in Ghezelbash. Yet I cannot I ignore the fact that a good deal of Article 34 appears to be

designed to protect the data protection rights of applicants for international asylum. Specifically, Article 34(9) appears to give such

applicants the right to apply to national courts to have data processed by Member States in breach of the provisions of Dublin III

“corrected or erased.” If, therefore, a Member State did in fact breach the requirements of Dublin III – by, for example, receiving such

information following an invalid or otherwise defective request, one might ask whether the right of erasure conferred by Article 39

operated as a form of exclusionary rule which prevented national authorities from acting on foot of such information?

Conclusions

26. In these circumstances, I consider that the question of whether Article 34(4) of the Dublin III Regulation creates enforceable legal

rights which individuals can assert must, at least, remain an open one. For my part, I cannot see, with respect, how this Court can

reach a conclusion adverse to the applicants’ claims in the absence of an Article 267 reference and a final determination of these

issues by the Court of Justice.

27. The second question is whether, even if Article 34(4) does create enforceable and justiciable rights, it can have any practical

implications so far as the present case is concerned. For even if the original request did not comply with the requirements of Article

34(4), it is not clear whether Article 34(9) may be invoked to erase and thereby exclude from consideration otherwise accurate

information which has been obtained from the UK authorities for all the reasons I have just mentioned.

28. Where, however, I respectfully part company with my colleagues is that I do not feel that this Court can properly resolve the

issues of EU law and, specifically, the questions of interpretation of Article 34(4) and Article 34(9) of the Dublin III Regulation which

arise in this appeal without the benefit of a reference of these questions to the Court of Justice of the European Union pursuant to

Article 267 TFEU. It follows, therefore that, for my part, I would have favoured adjourning the present appeal pending the outcome of

an Article 267 TFEU reference which addressed these (and, if necessary, other related) questions prior to ruling on the applicants’

claims.