The government has been given the green light to challenge a High Court ruling that determined that Ireland’s method of sending back international protection applicants to the UK was illegal. In March of the previous year, Ms Justice Siobhán Phelan decreed that there were gaps in the protection offered by Irish law, which informed Justice Minister Helen McEntee’s establishment of the UK as a “safe third country”, enabling repatriations.
In the face of this ruling, the Cabinet has permitted emergency law intended to reinitiate the process of transferring individuals who reached the State through Northern Ireland, to the UK. On Tuesday, the judge conceded that the pair of major objections to the label warranted an appeal to the Court of Appeal due to their public significance.
She endorsed the government’s request to dispute three aspects of her ruling and permitted the two international protection applicants to contest specific points on which they lost during the proceedings. Represented by Hugh Southey KC, Eamonn Dornan BL and BKC Solicitors, the pair of protection applicants were granted 95% of their legal expenses, having successfully contested the legitimacy of the label.
Ms Justice Phelan agreed to David Conlan Smyth SC’s request, on behalf of the State, to hold aloof the consequences of her rulings, including the annulment of the label, until the appeal’s resolution. The “safe third country” label, a reflection of a pre-existing arrangement between EU states, was set forth by the Minister in December 2020 as a result of Brexit.
This permitted Ireland to accept applications made by individuals who arrived from the UK, who could then be sent back to the UK to resolve their asylum status. Ms Justice Phelan declared the programme illegal, noting that Ireland’s International Protection Act of 2015, which provides the basis for the label, did not include all protections required by EU law.
The cases of two individuals, one originally from Iraq with Kurdish roots and the other a Nigerian national, hinged on the argument that they would be exposed to considerable harm if they were sent back to the UK. They claimed there was a potential for them to be deported further to Rwanda due to a policy implemented by Rishi Sunak’s administration. However, Ms Justice Phelan, after hearing extensive discussions surrounding the Rwanda policy, declined to rule on it. Since the designation was considered illegal under EU law, she mentioned that it was unnecessary to determine whether it was untenable because of the possible risk of ill-treatment resulting from the UK’s relations with Rwanda.
The man from Iraq sought international protection in Ireland during 2021, following the rejection of his asylum request in the UK two years prior. The Irish International Protection Office (IPO) and its appeal body acknowledged his case as part of the UK’s safe third country programme. Consequently, the Minister for Justice decided to order his return to the UK under the 2015 Act.
The individual from Nigeria, who had resided in the UK for five months on a student visa, requested international protection in 2022. Both the IPO and the appeal board deemed his application to be inadmissible. Ms Justice Phelan determined that these decisions should be reversed due to the illegality of the designation.