AC v International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

The Applicant initiated judicial review proceedings challenging a decision of the International Protection Appeals Tribunal ("IPAT") dated 18 August 2023, which affirmed the International Protection Office's ("IPO") decision to transfer him to Spain pursuant to EU Regulation No. 604/2013 (the "Dublin III Regulation"). At the commencement of proceedings on 3 October 2023, the Applicant had an active application for relief under Article 17 of the Dublin III Regulation before the Minister, filed on 5 July 2022.

The court granted leave for judicial review and an injunction preventing the Applicant's transfer to Spain on 12 February 2024. Subsequently, the Minister issued a determination under Article 17 refusing relief on 6 February 2024. The Applicant then sought to amend his Statement of Grounds to challenge this Article 17 decision, including a plea that the decision breached the "Carltona" principle concerning the delegation of ministerial powers.

On 23 February 2024, the Department of Justice informed the Applicant that the Transfer Order would expire before any transfer could be effected, meaning the Applicant's international protection application would now be considered in Ireland. The Applicant conceded this rendered the substantive challenge moot but wished to continue the proceedings in the public interest to have certain legal points determined.

Legal Issues Presented

1. Whether the judicial review proceedings are moot following the Minister's Article 17 determination and the expiration of the Transfer Order.
2. Whether the court should exercise its discretion to hear a moot case based on public interest and systemic importance.
3. Whether the Article 17 decision made by officials other than the Minister breaches the "Carltona" principle, which governs delegation of ministerial powers.
4. Whether the existing Article 17 application and determination process is unlawfully uncertain in contravention of EU law principles.

Arguments of the Parties

Applicant's Arguments

• The Applicant contends that despite mootness, the court should hear the case due to the public interest and the systemic importance of clarifying the Article 17 procedure under the Dublin III Regulation.
• The Applicant relies on the principles from Farrell v Governor of St. Patrick's Institution that allow courts to hear moot cases where the issue may otherwise evade review and where the decision has systemic relevance.
• The Applicant argues that the Article 17 process is unlawfully uncertain and that the Minister alone must make Article 17 decisions, displacing the Carltona principle. The Applicant submits that delegation of this power to officials is unlawful given the statutory scheme.
• The Applicant emphasizes that delays and expiration of Transfer Orders typically prevent judicial review of such decisions within the Dublin III six-month timeframe, thus justifying the court's intervention now.

Respondents' Arguments

• The Respondents argue the proceedings are moot as the substantive relief sought—the prevention of transfer—has been achieved and the Transfer Order has expired.
• They submit that the legal issues should be determined in cases where a live dispute exists between parties, not in moot cases.
• The Respondents rely on established case law emphasizing the court's reluctance to hear moot cases and submit that there is no real risk that these issues will evade review in future cases, as expedited procedures could be applied.
• The Respondents distinguish this case from precedents where mootness exceptions were applied, noting the absence of curtailed statutory functions and the fact that the Respondent opposes hearing the moot issues.
• They highlight that the Article 17 regime is subject to imminent change following a pending Court of Justice of the European Union (CJEU) judgment, diminishing the utility of hearing the moot issues now.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
PV (a minor) v The Court Service [2009] 4 IR 264	Framework for assessing mootness; whether the issue remains "alive in any meaningful sense."	Guided the court's approach to mootness, emphasizing sparing exercise of discretion.
Lofinmakin v Minister for Justice, Equality and Law Reform [2013] 4 IR 274	Two-step test for mootness; exceptions allowing courts to hear moot cases under special circumstances.	Provided the primary test applied by the court to determine mootness and exceptions.
Farrell v Governor of St. Patrick's Institution [2014] 2 ILRM 341	Factors permitting departure from mootness rule, including systemic relevance and risk of evading review.	Applicant relied on these factors; court analyzed and ultimately rejected their application here.
McDonagh v Governor of Mountjoy Prison [2015] IECA 71	Mootness doctrine must yield to imperative of resolving recurring or compelling issues.	Respondents distinguished this case on urgency and context grounds.
Odum & Ors v Minister for Justice & Equality [2023] IESC 3	Considerations specific to Supreme Court appeals and public importance in mootness context.	Cited to support the court's discretion in hearing or refusing moot cases based on real controversy.
WT v Minister for Justice and Equality [2015] IESC 73	Clarification that the Carltona principle can be displaced by express statutory provision or necessary implication.	Supported the Applicant’s argument that the Minister alone must make Article 17 decisions.
NVU v Refugee Appeals Tribunal [2020] IESC 46	Held that discretion under Article 17 could only be exercised by the Minister, not by others.	Reinforced the Applicant’s submission on the unlawfulness of delegation of Article 17 decisions.
RG v IPAT [2023] IEHC 742	Refusal of injunction partly on the basis that judicial review remains available despite transfer.	Respondents relied on this decision to argue that legal issues remain justiciable in live cases.
O'Brien v PIAB (No. 2) [2007] 1 IR 328 and Irwin v Deasy & Anor. [2010] IESC 35	Exceptions to mootness where statutory functions are gravely impacted and court anxious to decide issues.	Court distinguished these cases, noting no such impact here and that Respondents oppose hearing moot issues.

Court's Reasoning and Analysis

The court first applied the two-step test from Lofinmakin to determine whether the matter remained live. It found that the proceedings were moot because the Minister's Article 17 decision and the expiration of the Transfer Order meant no practical effect could be achieved by continuing the case. The Applicant conceded this mootness but argued for exceptions based on public interest and systemic importance.

In addressing the Applicant's reliance on Farrell and related authorities, the court concluded that the case did not meet the exceptions permitting the hearing of moot cases. The court rejected the argument that these issues would inevitably evade review in future cases, noting that expedited procedures and injunctions could prevent mootness in subsequent challenges.

Regarding the proposed amendment to challenge the Article 17 decision on the "Carltona" principle, the court noted that this ground was not part of the existing proceedings and that the Article 17 regime was subject to imminent change following a pending CJEU judgment. The court found it inappropriate to entertain a moot case to decide issues unlikely to affect the Applicant or statutory functions going forward.

The court emphasized that unlike precedents where mootness exceptions applied due to curtailed statutory functions or an active desire by parties for resolution, here the Respondents opposed hearing the moot issues. The court concluded that the attempt to use these proceedings to determine abstract legal questions was a contrivance and declined to exercise discretion in favor of the Applicant.

Holding and Implications

The court REFUSED the Applicant's motion to amend the Statement of Grounds and declined to hear the moot issues raised.

The direct effect of this decision is that the judicial review proceedings challenging the Transfer Order and the Article 17 decision are dismissed as moot. No new precedent was established. The court indicated that similar issues may be raised in future cases where a live controversy exists, and that the procedural regime may soon change following the anticipated CJEU judgment, potentially addressing some of the legal uncertainties raised.