BS & RS v The Refugee Appeals Tribunal & ors

Factual and Procedural Background

This appeal arises from an order of the High Court refusing reliefs sought by the appellants by way of judicial review. The appellants challenged the decision of the Refugee Appeals Tribunal which upheld a transfer order issued by the Office of the Refugee Applications Commissioner ("ORAC") pursuant to Article 12 of Regulation (EU) No. 604/2013 ("Dublin III Regulation"). The transfer order determined that the United Kingdom was the member state responsible for examining the appellants' applications for asylum, resulting in their transfer to the UK for assessment.

The appellants, Albanian nationals formerly residing in Kosova, arrived in the State on 12 December 2014 and applied for asylum two days later. They failed to provide truthful information about their arrival circumstances, which led ORAC to request information from the UK authorities under Article 34 of the Dublin III Regulation. The UK authorities confirmed the appellants held valid UK visas, contradicting the appellants' statements. The transfer decisions were notified to the appellants, who appealed unsuccessfully to the Refugee Appeals Tribunal. Subsequently, they sought judicial review in the High Court, which refused relief and dismissed their claims on discretionary grounds related to abuse of the asylum system. The present appeal challenges that refusal.

Legal Issues Presented

1. Whether the failure of ORAC to complete the Article 34 information request form in compliance with Article 34(4) of the Dublin III Regulation rendered the information obtained unlawful and inadmissible for determining the responsible member state.
2. Whether the appellants have a right to challenge non-compliance with Article 34 requirements as part of the effective remedy under Article 27(1) of the Dublin III Regulation.
3. Whether the provision of personal data, including fingerprints, breached data protection laws, specifically Directive 95/46/EC and the Data Protection Act 1988.
4. Whether the take charge request to the UK was made "as quickly as possible" in compliance with Article 21 of the Dublin III Regulation.
5. Whether the Tribunal erred in law or fact in upholding the transfer decisions based on the evidence and procedural compliance.

Arguments of the Parties

Appellants' Arguments

• The Article 34 request for information was unlawful because the Annex V form failed to specify the grounds and evidence for the request as required by Article 34(4), rendering the information obtained inadmissible ("fruits of the poisoned tree" principle).
• This unlawfulness constituted a breach of data protection laws, including Directive 95/46/EC and the Data Protection Act 1988, as well as Article 38 of the Dublin III Regulation.
• The Tribunal erred in holding that Article 34 requests could be made without specifying grounds or evidence.
• No investigation was conducted to consider alternative responsible member states.
• The sharing of personal data without lawful basis infringed the appellants' rights under Article 8 of the Charter of Fundamental Rights and the European Convention on Human Rights.
• The take charge request was not made "as quickly as possible," constituting procedural non-compliance.
• The trial judge erred in holding no right to challenge non-compliance with Article 34 and in dismissing the application on discretionary grounds related to abuse of the asylum system.

Respondents' Arguments

• Any non-compliance with Article 34 was not a matter giving rise to a justiciable right for the appellants; Article 34 concerns administrative cooperation between member states, not individual rights.
• The information request was substantively valid and based on a clear factual basis, given the high incidence of asylum seekers transiting through the UK.
• The information provided by the UK was lawfully obtained and did not breach data protection laws.
• The take charge request was made within the three-month period allowed by Article 21 and any delay was not excessive or invalidating.
• The appellants had an effective remedy through appeal to the Refugee Appeals Tribunal, which they utilized.
• The trial judge correctly exercised discretion to dismiss the application due to the appellants' lack of candour and abuse of the asylum process.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by examining the factual background, noting the appellants' failure to provide truthful information at application stage, necessitating the information request under Article 34. It acknowledged that the Annex V request form was not completed in strict compliance with Article 34(4) as it failed to specify grounds and evidence for the request. However, the Court emphasized that Article 34 is situated within Chapter VII of the Dublin III Regulation, which governs administrative cooperation between member states rather than conferring enforceable individual rights on asylum applicants.

Relying on the jurisprudence of the Court of Justice of the European Union ("CJEU") in Ghezelbash and Karim, the Court held that the effective remedy under Article 27(1) relates to challenges based on the application of criteria in Chapter III (Articles 7-15) for determining the responsible member state. It does not extend to procedural or administrative failings in information requests under Article 34. The Court rejected the appellants' argument that failure to comply with Article 34 invalidated the information obtained or the transfer decision.

The Court further found no breach of data protection law. The fingerprints were lawfully taken under domestic legislation and shared legitimately to establish identity. The UK did not provide fingerprints but only confirmed a match with their records, which did not contravene the Eurodac Regulation or data protection provisions.

Regarding the timing of the take charge request under Article 21, the Court noted that the request was made within the three-month limit and that the phrase "as quickly as possible" is directory, not mandatory. Any delay was not excessive, especially considering the appellants' false information contributed to the timeline. The Court declined to refer the issue to the CJEU, concluding the appellants could not succeed on this ground.

The Court agreed with the High Court's discretionary refusal of relief due to the appellants' abuse of the asylum system by providing false information. It underscored the purpose of the Dublin III Regulation to prevent applicants from evading responsibility criteria.

Finally, in a concurring judgment, a separate judge acknowledged the complexity of the issues concerning Article 34(4) and Article 34(9) and expressed the view that the question of enforceable individual rights under Article 34 remains open and may require a preliminary reference to the CJEU. However, this was a minority view, and the appeal was dismissed without such reference.

Holding and Implications

The Court DISMISSED the appeal, upholding the decisions of the Refugee Appeals Tribunal and the High Court.

The direct effect is that the appellants' transfer to the United Kingdom under the Dublin III Regulation stands. The Court confirmed that procedural failings in Article 34 information requests do not invalidate transfer decisions if the criteria in Chapter III are correctly applied. No new precedent was set regarding the justiciability of Article 34 rights, leaving that question open for future determination by the CJEU. The decision reinforces the principle that individual asylum seekers cannot challenge administrative cooperation procedures between member states, but may challenge the substantive application of responsibility criteria.