Ireland's declaration of UK as 'safe third country' is unlawful, High Court rules

High Court reporters

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

In a major decision on Friday, Ms Justice Siobhán Phelan held that the designation, made by Minister for Justice Helen McEntee in response to the UK’s exit from the European Union on January 31st, 2020, is “unlawful as a matter of EU law” due to the absence of certain required provisions.

The designation 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 could 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 there was a failure in Irish law to require that the designation be applied when the State can be satisfied that there is no risk of serious harm to an applicant on removal to a third country.

The State has also failed to adopt rules of methodology that are sufficient to ensure an application for international protection is not returned to a third country in breach of the minimum requirements of EU law.

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

The actions, which were contested by the Minister, were selected from a large group of cases that allege the designation of the UK as a safe third country is unlawful due to risks arising from potential onward transfer to Rwanda.

The UK’s Supreme Court found last November that UK 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.