Ireland’s designation of UK as ‘safe third country’ is unlawful, rules High Court

Minister for Justice Helen McEntee made the designation in response to UK’s exit from EU

Ireland’s designation of the UK as a “safe third country” to which asylum seekers can be returned for processing is unlawful as a matter of EU law, the High Court has ruled.

In a significant decision on Friday, Ms Justice Siobhán Phelan held that Minister for Justice Helen McEntee exceeded her powers by designating the UK a safe third country in December 2020, in response to the UK’s exit from the EU.

The designation mechanism is relatively similar to a scheme that exists between EU member states and enables a finding that an international protection application is inadmissible if the applicant has arrived from the UK. A person can then be returned to the UK, as a safe non-EU country, for their asylum application or situation to be determined there.

Ms Justice Phelan said the breach arises from a gap between safeguard requirements prescribed in the International Protection Act of 2015 and those mandated by the Dublin III Regulations, to which Ireland has signed up.

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The failure of the 2015 Act to require the Minister for Justice to be satisfied there is no risk of “serious harm” to a transferee means Ireland is in breach of article 3(3) of Dublin III, she said.

Dublin III provides for a State retaining the designation mechanism so long as it complies with rules and safeguards laid down in the Recast Procedures Directive, which Ireland did not adopt, said Ms Justice Phelan.

That directive requires an EU member state to be satisfied a person being deported to a third country would not be at risk of “serious harm”, as defined by another directive Ireland did not adopt, she said.

The judge said Dublin III, although not covering non-EU states, sets a “common minimum standard” for transferring a person seeking protection in the EU.

She found there is a gap between safe third country requirements set out in the 2015 Act and those prescribed in EU law, with the Irish version failing to provide for the full extent of safeguards. These safeguards are “binding” on Ireland because of its adherence to Dublin III, she said.

She was also satisfied the State has not adopted rules of methodology that are sufficient to ensure an applicant will not be returned to a third country in breach of EU law requirements.

Her ruling comes in two “lead” challenges to the designation which she heard over four days last month.

The men’s actions, which were contested by the Minister, Ireland and the Attorney General, were selected from a large group of cases that allege the UK designation is unlawful due to various reasons, including alleged risks arising from potential onward transfer to Rwanda.

The UK’s Supreme Court found last November that Prime Minister Rishi Sunak’s plan to fly asylum seekers to Rwanda is unlawful, as it leaves deportees open to human rights breaches. The UK government is now proposing new laws to overcome legal obstacles.

Given she has already found the designation to be unlawful, Ms Justice Phelan said she did not need to decide whether the designation is unsustainable by reason of alleged exposure to a risk of ill-treatment due to the UK’s relationship with Rwanda.

However, she said it is clear the Minister gave detailed consideration to the terms of a memorandum of understanding between the UK and Rwanda. A court should not be asked in judicial review proceedings to impugn the rationality of a decision taken at a point in time by reference to developments that postdate the decision, she added.

The lead challenge applicants, represented by Hugh Southey and Eamonn Dornan, had their asylum applications deemed inadmissible as they had a sufficient connection with the UK.

One of the men, an Iraqi of Kurdish origin, applied for international protection here in 2021, two years after he was refused asylum in the UK. The Irish International Protection Office (IPO) was satisfied his case came within the UK safe third country scheme. This was upheld on appeal before the Minister proceeded to make an order, under the 2015 Act, for his return to the UK.

Asked to consider matters pertaining to Rwanda, the Minister found there was “little-to-no risk” that Rwanda would be his final destination if returned to the UK.

The other applicant, a Nigerian man, sought international protection in this State in 2022 after spending five months in the UK on a student visa. The IPO and appeal tribunal found his application was inadmissible.

Ms Justice Phelan said it would seem to follow that these decisions should be quashed by reason of the unlawfulness of the designation.

In a separate judgment on Friday, Ms Justice Phelan dismissed a challenge to the Minister’s designation of South Africa as a “safe country of origin”. This designation enables Justice officials to fast-track asylum applications from South African nationals.

The safe origin declaration and accompanying faster processing applies to 10 non-EU countries: South Africa, Algeria, Botswana, Albania, Georgia, Kosovo, Macedonia, Montenegro, Serbia, Bosnia and Herzegovina.

The judge was satisfied the South African applicants failed to establish that the Minister breached her duty to review the designation.

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