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The High Court has today ruled that Ireland’s decision to designate the UK as a “safe third country” to which asylum seekers can be returned, is contrary to EU law.
The designation had been made by the Minister for Justice after the UK left the EU.
However, this morning Ms Justice Siobhán Phelan said that the designation was in breach of EU law because “of the absence of certain provisions concerning issues including the risk of serious harm and and the existence in the safe third countries to request refugee status and receive protection”, RTÉ News reported.
The legal basis for designating the UK as a safe third country in circumstances where Ireland’s asylum policy is subject to a common EU policy was at issue, Justice Phelan said.
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, the Irish Times reported.
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.
It had been argued that it was unlawful to designate the UK as a safe third country because of its adoption of the “Rwanda policy”, where the British government is seeking to transfer asylum seekers to Rwanda in order to have their claims processed.
The UK Supreme Court recently ruled ruled the policy was unlawful – and it was argued in the Irish High Court that the situation was still unresolved.
[The judge] said there was a failure to make provision in Irish law for effective rules of methodology to ensure that the conditions for designation continue to be met before a return order is made.
There was also a failure to provide for a broader rights analysis prior to the making of a return order which was also contrary to the requirement of EU law, the judge said, according to RTÉ News.
The ruling is expected to have implications, not just for cases involving asylum claimants who come here from the UK, but for those who come from EU member states.
The two cases before the court involved two men: one an Iraqi of Kurdish origin who applied for asylum in Ireland in 2021, two years after being refused international protection in the UK; the other a Nigerian man who spent 5 months in the UK on a student visa before seeking asylum here in 2022.
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