ALJ and A, B and C, Re Judicial Review

Factual and Procedural Background

The case concerns an application for judicial review by a mother, referred to as Plaintiff, and her three children, Appellants, all Sudanese nationals, challenging the decision of the UK Border Agency to remove them to Ireland under the Dublin II Regulation. The applicants contend that as non-Arab Darfuris, they face a real risk of persecution if returned to Sudan, and that Ireland does not provide adequate protection, potentially leading to refoulment. The applicants also challenge the failure of the UK Border Agency to exercise discretion under Article 3(2) of the Dublin II Regulation to assume responsibility for examining their asylum claims in the UK, citing risks of refoulment and poor conditions in Ireland. Additionally, they assert a failure to have regard to the welfare of the children under Section 55 of the Borders, Immigration and Citizenship Act 2009.

The applicants previously sought asylum in Ireland, where their claims were refused without addressing the issue of their ethnic status as non-Arab Darfuris. They subsequently moved to Northern Ireland and applied for asylum, triggering the UK Border Agency's request to return them to Ireland. The judicial review proceedings were commenced on the day removal directions were made.

The factual background includes detailed evidence of the applicants’ persecution fears in Sudan, their perilous journey to Ireland, the poor living conditions experienced in Irish asylum accommodation, and the mental health challenges faced by the eldest child, particularly in relation to the proposed removal to Ireland and potential onward refoulment to Sudan.

Legal Issues Presented

1. Whether the decision to remove the applicants to Ireland under the Dublin II Regulation breaches their fundamental rights by exposing them to a real risk of refoulment to Sudan and inhuman or degrading treatment in Ireland.
2. Whether the UK Border Agency failed to properly exercise its discretion under Article 3(2) of the Dublin II Regulation to assume responsibility for examining the applicants’ asylum claims in the UK.
3. Whether the absence of a clear, consistent, and publicly expressed policy guiding the exercise of discretion under Article 3(2) renders the decision unlawful.
4. Whether the Secretary of State failed to discharge the statutory duty under Section 55 of the Borders, Immigration and Citizenship Act 2009 to safeguard and promote the welfare of the children in making the removal decision.
5. Whether the UK Border Agency erred in taking into account compliance by Ireland with the Minimum Standards Directive, when Ireland has opted out and does not meet those standards.

Arguments of the Parties

Appellants' Arguments

• The UK Border Agency's guidance states non-Arab Darfuris should not be returned to Sudan, but Ireland does not share this policy and may return them, risking refoulment.
• The UK Border Agency failed to exercise discretion under Article 3(2) to examine their asylum claims in the UK despite the risk of refoulment and poor conditions in Ireland.
• The absence of any policy guiding the exercise of discretion under Article 3(2) is unlawful and leads to inconsistent decision-making.
• The Secretary of State failed to consider the welfare of the children as required by Section 55, including the mental health of the eldest child and the impact of removal on the family unit.
• There was a misdirection in law by wrongly assuming Ireland complies with the Minimum Standards Directive, impacting the assessment of conditions faced by asylum seekers.
• They challenged systemic deficiencies in Ireland’s asylum system, including low recognition rates, poor living conditions in Direct Provision accommodation, and lengthy delays in processing claims.
• The eldest child suffers from serious mental health issues linked to the prospect of removal, which were not properly considered in the decision-making process.

Respondent's Arguments

• There is a presumption that Ireland complies with its international obligations, which can only be rebutted by evidence of systemic deficiencies amounting to a real risk of inhuman or degrading treatment (Article 4 of the Charter).
• The UK Border Agency’s decision was lawful as there is no established systemic deficiency in Ireland’s asylum or reception procedures.
• The applicants have avenues in Ireland, including judicial review and subsidiary protection applications, to prevent refoulment to Sudan.
• The Secretary of State properly considered the welfare of the children and the family unit will be returned together.
• The conditions in Ireland are comparable to those in Northern Ireland, and the family had previously resided in Ireland for over a year.
• There is no requirement for a formal policy guiding the exercise of discretion under Article 3(2), as discretion must be retained for exceptional cases.
• The UK Border Agency’s reliance on the Minimum Standards Directive was an error, but this did not materially affect the lawfulness of the decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AA v Secretary of State for the Home Department [2009] UKAIT 00056	Recognition that non-Arab Darfuris face a real risk of persecution in Sudan and should not be returned.	Used to establish that if applicants are non-Arab Darfuris, their asylum claims would succeed in the UK.
NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 and C-493/10	Sets threshold for derogation from Dublin II Regulation based on systemic deficiencies in asylum or reception procedures of the first Member State.	Applied to confirm that only systemic deficiencies known to the UK obligate it to assume responsibility for asylum claims.
EM (Eritrea) and Others v Secretary of State for the Home Department [2012] EWCA Civ 1336	Clarifies that proof of systemic deficiencies is required to prevent removal under Dublin II and that individual risk alone is insufficient.	Followed as persuasive authority on the requirement of systemic failure in Ireland’s asylum system.
AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921	Confirms the need to establish systemic failure for protection against removal under Dublin II.	Supported the court’s conclusion that systemic deficiency must be shown in Ireland’s procedures.
KRS v United Kingdom [2008] ECHR 1781	Obligation on authorities to verify asylum procedures of the receiving state rather than rely on presumption of compliance.	Referenced to emphasize the duty of the UK to make inquiries about Ireland’s asylum procedures.
MSS v Belgium and Greece [2011] ECHR 108	Recognition of systemic deficiencies in asylum procedures as grounds for protection.	Considered in assessing the threshold for systemic failure.
Hirsi v Italy (27765/09; 2012)	Importance of reports from independent human rights bodies in identifying systemic deficiencies.	Used to support the approach to evidence of systemic deficiencies.
B v Secretary of State for Work and Pensions [2005] EWCA Civ 929	Requirement for lawful policy to guide the exercise of significant executive discretion.	Relied upon to argue the need for a clear policy on the exercise of discretion under Article 3(2).
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4	Best interests of the child must be a primary consideration in immigration decisions.	Applied to assess the failure to properly consider the welfare of the children under Section 55.
C.O.I. Applicant v The Minister for Justice, Equality and Law Reform [2007] IEHC 180	Test for judicial review of refusal to permit fresh asylum applications in Ireland.	Referenced regarding the applicants’ potential remedies in Ireland.
Nawaz v Minister for Justice, Equality and Law Reform [2012] IESC 58	Criticism of Ireland’s asylum system and judicial approach.	Used to illustrate concerns about Ireland’s asylum procedures.
Okunade v Minister for Justice Equality and Law Reform [2012] IESC 49	Further judicial criticism of Ireland’s asylum system.	Referenced in context of systemic deficiencies alleged in Ireland.
M.M. v Minister for Justice, Equality and Law Reform, Ireland [2012]	EU Court of Justice judgment on Ireland’s asylum system.	Noted as not amounting to systemic failure in Ireland’s asylum procedures.
Saeedi v Secretary of State for the Home Department [2010] EWHC 705	Confirms absence of policy in the UK regarding exercise of discretion under Article 3(2) Dublin II.	Used to explain the UK’s ad hoc approach to discretion.

Court's Reasoning and Analysis

The court began by considering the requirement under Dublin II Regulation that there is a presumption of mutual trust and compliance among EU Member States, which limits the circumstances in which the UK must assume responsibility for asylum claims under Article 3(2). The court reviewed the authoritative decision in NS v Secretary of State for the Home Department, establishing that only a known systemic deficiency in the asylum or reception procedures of the receiving state, amounting to substantial grounds for believing the asylum seeker faces a real risk of inhuman or degrading treatment (Article 4 of the Charter), obliges the UK to assume responsibility.

The applicants’ argument that individual risk alone should suffice was rejected, with the court affirming the requirement to prove systemic failure. The court examined evidence regarding Ireland’s asylum system, including low recognition rates, reports from NGOs and UN bodies, and the absence of a policy on returning non-Arab Darfuris to Sudan. However, the court found that none of this evidence established systemic deficiencies amounting to a real risk under Article 4 of the Charter. The court also noted that the applicants have ongoing remedies in Ireland, including judicial review and subsidiary protection applications, which mitigate the risk of refoulment.

The court then turned to the exercise of discretion under Article 3(2). It acknowledged the absence of a formal UK policy on the exercise of this discretion but accepted that this is appropriate given the need for flexibility and the principle of mutual confidence among Member States. The court found no legal requirement for a published policy and held that the absence of one does not invalidate the decision.

Regarding Section 55 of the Borders, Immigration and Citizenship Act 2009, the court emphasized that the welfare of the children must be a primary consideration. It found that the Secretary of State failed to properly identify the best interests of the children before balancing competing factors. The court highlighted significant differences in living conditions, education access, and family life between Northern Ireland and Ireland, concluding that the best interests of the children favored remaining in Northern Ireland. In particular, the mental health of the eldest child was not adequately considered, and no proper arrangements were made for his care if returned to Ireland.

The court also found that the Secretary of State erred by relying on the assumption that Ireland complies with the Minimum Standards Directive, from which Ireland has formally opted out and whose standards it does not meet. This misdirection further undermined the lawfulness of the removal decision.

In conclusion, while rejecting the claim of systemic failure in Ireland’s asylum system, the court held that the removal decision and the decision not to exercise discretion under Article 3(2) were unlawful due to the failure to properly consider the welfare of the children under Section 55 and the misapplication of the Minimum Standards Directive.

Holding and Implications

The court QUASHED the removal decision and the decision not to assume responsibility under Article 3(2) of the Dublin II Regulation.

The direct effect of this ruling is that the applicants cannot be removed to Ireland under the impugned decisions. The court’s decision was grounded primarily on the statutory duty to consider the welfare of the children and the misapplication of legal standards regarding Ireland’s compliance with reception conditions. The court expressly rejected the claim that systemic deficiencies in Ireland’s asylum system justified the exercise of discretion to retain responsibility in the UK.

No new precedent was set regarding the requirement of systemic failure under Dublin II, but the judgment clarifies the primacy of child welfare considerations under Section 55 in removal decisions. The ruling underscores the importance of accurate legal assessments of the receiving state’s asylum procedures and conditions, and the necessity to properly consider individual welfare, particularly of children, in immigration decisions.