As reported last week, the Irish High Court has held that the decision to put the UK on the list of safe third countries to return people seeking asylum to has been held unlawful. The case is A & anor v The Minister for Justice, Ireland and the Attorney General & anor [2024] IEHC 164.

Legislative background

Following Brexit, the Dublin Regulations no longer applied to the UK and so in December 2020 Ireland made an order designating the UK as a safe third country for the purpose of the International Protection Act 2015. This means that where a person is deemed to have passed through such a safe third country, their asylum claim can be deemed inadmissible with the intention of returning them to that country to have their claim processed instead.

The power to designate a country as safe was a new one, inserted into the 2015 Act by the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020. The 2020 Act also added a new basis for treating an asylum claim as inadmissible where there was a connection to a designated safe third country, a prohibition against refoulement for applications deemed inadmissible and a power to make a return order for a person whose claim had been deemed inadmissible, requiring them to leave Ireland.

The applicants

Applicant A is an Iraqi man who claimed asylum in Ireland on 18 May 2021. He had claimed asylum in the UK in March 2018 and this had been refused in December 2019. On 4 October 2021 the UK accepted Applicant A to be returned to the UK. His application was then deemed inadmissible on 3 March 2022 as the UK was considered to be a safe country.

He appealed that decision (before the announcement of the UK’s Rwanda policy) and submitted that the UK should not be considered a safe third country generally and/or in his particular circumstances. He also said that he had returned to Iraq between the two asylum claims and so there was an error in finding that he had a connection to the UK.

The tribunal dismissed his appeal, finding that there was no evidence he had left the UK after his unsuccessful asylum claim and that the UK “would respect and adhere to the principal of non-refoulement in accordance with its international obligations under Article 3 ECHR”.

A notice was then issued on 5 August 2022 confirming his asylum claim was inadmissible and that a return order would be made. On 30 August 2022 his representatives made further submissions based on a change of circumstances, pointing out that there was a risk he would be sent to Rwanda which had not been designed by Ireland as a safe third country.

Those submissions were rejected, partly because the applicant was not likely to be affected by the Rwanda policy as he had arrived before 1 January 2022. A judicial review application was then lodged by Applicant A.

Applicant B is a Nigerian national who claimed asylum in Ireland on 24 May 2022, having previously been in the UK with leave as a student. An inadmissibility decision was issued on 10 May 2023 and a judicial review challenging that decision was lodged on 7 June 2023.

The judicial review

The judicial review included a challenge to the lawfulness of the decision in light of the UK’s Rwanda policy. The court set out the history of the Rwanda policy to date, including concerns about the Bill as raised by UNHCR and the Bar Council, and makes a point of noting House of Lords concerns about the treaty.

The grounds for judicial review also included that the designation of the UK as a safe third country was unlawful because of the failure to carry out a meaningful review and/or that it was irrational. There were also challenges on data protection grounds and that Ireland’s safe country return system did not comply with EU law.

The court said that the proceedings also called into question the legal basis for giving effect to a safe third country concept in Ireland, given it is subject to common EU policy on asylum and operates within the Common European Asylum System.

The High Court held [at 168] that there was a gap between EU law and Irish domestic law and that the latter had failed to include all the necessary safeguards required under EU law. In particular:

The failure to require the Minister to be satisfied that a person would not be subjected to serious harm on transfer to a third country, if designated as safe, means that Ireland is in breach of the requirements of EU law, specifically Article 3(3) of the Dublin III Regulations.

On that basis it was held that the decision to designate the UK as a safe country was unlawful and the Minister had exceeded their powers in doing so.

There was another challenge which was to the failure of the Minister to carry out a review of whether the UK was still a safe third country following the announcement of the Rwanda policy, but the court declined to address this point [175]. However, the court did find that the lack of provision in domestic law for a review of the safety of the third country at the point a return decision is made was also unlawful [192-193].

The High Court declined to decide other grounds on the basis that it was not necessary in light of the finding of unlawfulness as above.

The court concluded by granting a declaration that the designation of the UK as a safe third country was contrary to Ireland’s obligations under EU law and that decisions made in reliance on that should be quashed.

Conclusion

Although the Rwanda policy was not the determining factor in this case, if Ireland does seek to remedy the legislative issues and remake the decision in a lawful way then it will surely be of relevance at that point. The judge also made the point at paragraph 11 that this case concerned the position before the provisions in the Illegal Migration Act 2023 around mandatory inadmissibility had been brought in.

This case is a useful reminder that what the UK is doing in relation to asylum policy does have an impact on its relationship with other countries. Presumably if EU countries are unable to return people seeking asylum to the UK, they will be reluctant to accept any the UK wishes to return.

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