Saturday 19 January 2019

Young Afghan may apply to prevent his transfer to UK over mental health consequences - Court of Appeal

The boy, who cannot be named because he is a minor, was sentenced to nine-months' supervised probation
The boy, who cannot be named because he is a minor, was sentenced to nine-months' supervised probation

Tim Healy

A YOUNG Afghan man with “significant” mental health difficulties may apply to prevent his transfer from here to the UK on grounds of the mental health consequences of that, the Court of Appeal has ruled.

In an important judgment with implications for more than 100 asylum cases raising similar issues, the three judge court found the High Court erred in not permitting the man make that claim in judicial review proceedings.

The case centres on whether the International Protection Appeals Tribunal (IPAT) had wrongly concluded it had no discretion under an EC Regulation - the Dublin III Regulation- to refuse the man's transfer to the UK on grounds of the mental health consequences of that.

The COA noted the Tribunal had accepted the man presents as “traumatised” with ongoing significant mental health difficulties linked to uncertainty over his immigration status over some six years since he came to Europe aged 18. 

The man’s judicial review will now return to the High Court which will decide the mental health and other claims relating to the State’s operation of discretionary powers under the Dublin III Regulation, which provides for asylum applications to be dealt with by the first member state of entry.

Mr Justice Gerard Hogan, giving the COA judgment, said the case raised “important questions” about the operation of Dublin III, particularly proper interpretation of the discretionary provisions of Article 17.1.

Article 17 gives a member state discretion to deal with an asylum application even if it is not the first member state of entry.

After the man, aged 25, applied for asylum here in 2016, it emerged he previously unsuccessfully applied for asylum in the UK in 2010. The UK agreed in May 2016 to a “take back” request from the Irish authorities in line with Dublin III and a direction was made for the man’s transfer to the UK.

After the man lost his appeal to the IPAT over transfer,  Eamon Dornan BL, instructed by Brian Burns solicitor, for the man, secured leave for judicial review on some grounds.

The High Court refused leave on two particular grounds  – whether  IPAT was entitled to (1) exercise the discretion conferred by Article 17 and (2) to have regard to the potential impact of Article 8 of the European Convention on Human Rights in deciding whether or not to set aside the man’s transfer to the UK.

In his judgment partially allowing the man’s appeal, Mr Justice Hogan said the man’s poor mental health is at the heart of the proceedings.  The IPAT had accepted he has ongoing significant mental health difficulties, is particularly vulnerable for that reason, had attempted suicide and comes from a country experiencing internal armed conflict. 

The IPAT had said he “may well have a strong putative claim to international protection” but considered the Minister for Justice, not the Tribunal, had discretion under Dublin III  whether to permit him seek asylum here rather than move him to the UK to renew his application.

Mr Justice Hogan said, given various decisions of the Court of Justice of the EU, it seemed the IPAT member was also obliged to consider exercising the discretionary power. That included, where necessary, to examine the impact on the man’s mental health of physically moving him to the UK.

In the circumstances, the man was entitled to leave for judicial review of the Tribunal’s ruling it had no jurisdiction to exercise the Article 17 discretion, he ruled.

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