State granted permission to appeal ruling over UK's designation as 'safe third country'

High Court reporters

The State has secured permission to appeal a High Court decision that concluded Ireland’s system for returning international protection applicants to the UK was unlawful.

Ms Justice Siobhán Phelan last March ruled there are safeguarding deficiencies in the Irish law underpinning Minister for Justice Helen McEntee’s designation of the UK as a “safe third country”, which had facilitated returns.

Since her ruling, the Cabinet has approved emergency legislation aimed at recommencing UK transfers of people who come to the State via Northern Ireland.

On Tuesday, the judge acknowledged there were points of public importance in the two “lead” challenges to the designation and held that an appeal to the Court of Appeal was warranted.

She approved the State’s application to argue three points against her judgment, and allowed the two international protection applicants to cross-appeal over certain points they lost in the case.

The two, represented by Hugh Southey KC, Eamonn Dornan BL and BKC Solicitors, were awarded 95 per cent of their legal fees, having successfully argued against the validity of the designation.

Ms Justice Phelan acceded to a request from David Conlan Smyth SC, for the State, for a pause to the effects of her orders, including quashing the designation, pending the outcome of the appeal.

The “safe third country” designation, which effectively mirrors a scheme existing between EU member states, was made by the Minister in December 2020 in response to Brexit.

It allowed Ireland to deem applications admissible if they were made by people who arrived from the UK. The applicant could then be returned to the UK in order for their asylum status to be determined there.

Ms Justice Phelan ruled the scheme was unlawful as the International Protection Act 2015, which underpins the designation, did not contain every safeguard required by EU law.

The applicants – an Iraqi man of Kurdish origin and a Nigerian man – had centred their cases on a claim that returning them to the UK exposed them to significant risk of harm as, they said, there was a possibility they would be sent on to Rwanda under a policy of the UK government.

Ms Justice Phelan heard substantial arguments concerning the Rwanda policy but declined to make any findings related to it.

Given she held that the designation was unlawful as a matter of EU law, the judge said she did not need to go on to decide whether it is unsustainable by reason of alleged exposure to a risk of ill-treatment due to the UK’s relationship with Rwanda.

The Iraqi challenger said he applied for international protection in Ireland in 2021, two years after he was refused asylum in the UK.

The Irish International Protection Office (IPO) and appeal body were satisfied his case came within the UK safe third country scheme.

The Minister for Justice then proceeded to make an order, under the 2015 Act, for his return to the UK.

The Nigerian applicant sought international protection here 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 held that these decisions should be overturned by reason of the unlawfulness of the designation.