BS & RS v The Refugee Appeals Tribunal & ors

Factual and Procedural Background

The Appellants, nationals of Other Region, entered The State on 12 December 2014 and sought international protection two days later. Because their account of arrival was untruthful, Agency B (the domestic asylum authority) sent an Article 34 information request—together with the Appellants’ fingerprints—to authorities in The Other State on 15 January 2015. The response confirmed that the fingerprints matched individuals who held valid visas for The Other State. Relying on Article 12(2) of the Dublin III Regulation, Agency B issued a “take charge” request on 16 March 2015; it was accepted by The Other State on 13 April 2015. A transfer decision dated 19 May 2015 followed.

The Appellants appealed to Company A, which upheld the transfer. Their subsequent judicial-review challenge was dismissed by the High Court (Judge Humphreys). The Court of Appeal (Judge Peart, Judge Birmingham; Judge Hogan dissenting) affirmed. The Supreme Court (Judge Dunne delivering judgment, with Judge Clarke C.J., Judge MacMenamin, Judge Charleton and Judge Finlay Geoghegan concurring) granted leave and identified six legal issues for determination. On 22 May 2019 the Supreme Court dismissed the appeal.

Legal Issues Presented

1. Whether Agency B breached Article 34(4) of the Dublin III Regulation by failing to state adequate grounds and evidence in its information request.
2. Whether sending the Appellants’ fingerprints to The Other State breached Article 34(2) and 34(4).
3. If a breach occurred, whether it is justiciable under Articles 27 or 34(9) of the Regulation.
4. Whether Company A erred in assessing compliance with Article 21’s requirement that a “take charge” request be made “as quickly as possible.”
5. What remedies—particularly data erasure or exclusion of evidence—would be available if a breach were established.
6. Whether any European-law questions raised are acte clair, obviating a reference under Article 267 TFEU.

Arguments of the Parties

Appellants’ Arguments

• The Article 34 request was “speculative” because it contained no concrete grounds or evidence beyond the word “fingerprints,” thereby breaching Article 34(4).
• Transmitting fingerprints without a prior request from The Other State violated Article 34 and data-protection norms.
• Any breach of Article 34 triggers enforceable rights under Article 27, entitling them to judicial relief and possible data erasure under Article 34(9).
• The “take charge” request was not made “as quickly as possible,” rendering the transfer decision invalid.
• An Article 267 reference was necessary to clarify whether Article 34(4) creates individual rights.

Respondents’ Arguments

• Article 34 governs inter-state cooperation and does not confer individual rights; any drafting “infelicities” in the request therefore do not ground a challenge.
• The fingerprints were lawfully obtained under domestic legislation and their transmission pursued the legitimate aim of identifying the responsible Member State; no data-protection breach occurred.
• Even if strict compliance with Article 34(4) was lacking, the request remained valid and the Appellants lack standing to complain.
• The “as quickly as possible” language in Article 21 is directory; the request was indisputably within the three-month outer limit.
• No issue required a preliminary reference because the relevant provisions are acte clair.

Table of Precedents Cited

Court’s Reasoning and Analysis

Article 34 Compliance. The Court acknowledged the information request was “terse” but held it satisfied Article 34(4). The Regulation’s purpose is administrative cooperation between States; any deficiency affects only the requested State, which could have sought clarification or refused to reply. No individual rights of the Appellants were infringed.

Transmission of Fingerprints. Fingerprints were lawfully taken under domestic statute and could be shared with another Convention country. Article 34 does not prohibit unsolicited provision of such data, and the sharing pursued a “legitimate interest” recognised by national data-protection law. Accordingly, no breach of either the Dublin III Regulation or data-protection principles occurred.

Justiciability. Because no breach was found, questions of justiciability and remedies under Articles 27 or 34(9) were moot.

Timeliness of the Take-Charge Request. The phrase “as quickly as possible” was interpreted as directory. The request was filed exactly three months after the asylum application—within the Regulation’s explicit outer limit—so Company A committed no error.

Remedies. Given the absence of any breach, the Court rejected requests for data erasure or exclusion of evidence.

EU Reference. The Court deemed the interpretive issues acte clair; no Article 267 reference was necessary.

Holding and Implications

HOLDING: The appeal is DISMISSED.

Immediate effect: the transfer decisions stand, and the Appellants will be transferred to The Other State for examination of their asylum claims. Broader implications: the judgment clarifies that minor defects in an Article 34 information request do not, absent prejudice, confer a private right of action, and that the “as quickly as possible” language in Article 21 is directory rather than mandatory. No new precedent altering existing jurisprudence was set.