Dublin II Transfers

Supreme Court to decide on Greek Transfers

 

The High Court has decided that the Supreme Court should examine the transfer of asylum seekers to Greece under the Dublin regulations. On Thursday 11th February, Judge Clark decided to allow an appeal to the Supreme Court as she found that the matter was in the public interest.

 

The case questioned the lengths the state should have to go, before transferring asylum seekers, to examine how the destination state is implementing asylum procedure. Under the Dublin regulation, asylum seekers can only apply for asylum in one European Member State, and this must be the first Member State which they reach.

 

The court has paused the transfer of the three asylum seekers involved, along with an estimated twenty five others, pending the outcome of the Supreme Court appeal.

 

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3 Test Case Certification to Supreme Court Allowed.

 

On Thursday last, Justice Clark of the High Court agreed to certify for appeal the matter of Mamo, Mirza and Abrahimi, three asylum seekers pending transfer to Greece under the Dublin Regulations.

 

The three, along with an estimated twenty five others, have been allowed leave to stay pending the outcome of the Supreme Court appeal, which is likely to take place in the coming months. 

 

At high court, Justice Clark found that the duty on ORAC to investigate asylum procedure in Greece had been more than satisfied, and as such found against the applicants.

 

The main primary arguments made by Council for the asylum seekers for an appeal were; that the case was of general application and of public interest; that the case had an important European significance; that a Supreme Court judgement would benefit the applicants as well as other similar cases thereafter and; that an appeal, if successful, could lead to recommendations that ORAC have greater investigative responsibilities in the future.

 

The hearing also looked at the merit of an appeal to the ECJ, with Counsel for the asylum seekers arguing that having each member state developing their own jurisprudence independently could frustrate the uniformity of the application of the Dublin regulation, and hinder progress toward a Common European Asylum System.

 

The primary arguments for the state (ORAC) were; that the point of law on which the appeal was being requested was not one argued during the original case; that the appeal could lead to an assumption that the state had failed in their duty, which they had not; that the appeal could lead to an assumption that Greece was not adhering to it asylum procedure obligations, which was not the case and; that if certified to the Supreme Court on even a specific matter of law, a broad range of otherwise settled issues could be re-examined.

 

Justice Clark made it clear that she did not want to deny the applicants the chance to appeal to the Supreme Court, and possibly the ECJ, as other applicants were also dependant on the outcome of this case. The Court also pointed out that the Refugee Legal Service should perhaps be entitled to know what ORAC’s duty should be in such circumstances. She acknowled Council for the State’s fears that a certification to the Supreme Court could result in a broad re-examination of the entire case, expressing a desire that a narrow remit could be imposed, but recognised that this was impossible.

 

The Court allowed the Certification and recommended fast tracking of the case to the Supreme Court. The time spent during the Supreme Court will not be counted toward the six months limit on Dublin regulation transfers.

 

The approved point of law to be decided by the Supreme Court will be as follows:

 

On the assumption that issues relevant to Article 3 of the ECHR do not arise, what is the extent of the obligation or entitlement on the part of the ORAC, pursuant to Council Regulation (EC) No. 343/2003, to assess
whether the Member State prima facie responsible for taking back an applicant for asylum status operates an asylum system which fails to accord with the obligations of that Member State pursuant to that Regulation?

 

For further information about the original ruling see:

 

Matters: Tigist Mamo (AKA Eden Mamo) v Refugee Applications Commissioner &
Anor / Record No. 2008/1243/JR;
Ramazan Hussein Mirza v Refugee Applications Commissioner & Anor / Record
No. 2008/1242/JR;
Bryalay Abrahimi v Refugee Applications Commissioner & Anor / Record No.
2008/1278/JR.