S.P. v Minister for Justice & Ors (Approved)

Factual and Procedural Background

The Applicant, originally from Somalia, first sought international protection in Sweden in 2017. She arrived in Ireland in 2023 and applied for international protection there on 21 February 2023. Under the Dublin III Regulation, Sweden is the responsible Member State as the Applicant's first point of arrival in the EU. The Applicant sought a derogation under Article 17 of the Dublin III Regulation to avoid transfer back to Sweden, primarily on medical grounds, alleging that necessary medical treatment would not be accessible there. The International Protection Office (IPO) requested Sweden to take back the Applicant, and Sweden accepted responsibility. The Applicant appealed the IPO transfer decision to the International Protection Appeals Tribunal (IPAT), which affirmed the transfer decision, holding it had no power to consider Article 17 grounds and found no risk of refoulement. Subsequently, the Applicant's solicitors applied to the Minister for a derogation under Article 17, which was refused on 10 May 2024. The Applicant then sought leave for judicial review of these decisions and an injunction to restrain deportation pending the hearing.

Legal Issues Presented

1. Whether the Applicant is entitled to a derogation under Article 17 of the Dublin III Regulation to avoid transfer back to Sweden on medical and humanitarian grounds.
2. Whether the powers under Article 17 can be validly delegated by the Minister to officials such as those in the IPO or to IPAT.
3. Whether an injunction restraining the Applicant's deportation pending judicial review should be granted.
4. The applicability and interpretation of the six-month transfer period under Article 29(1) of the Dublin III Regulation, including the consequences of expiry.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended that the transfer decision was ultra vires because the IPO lacked authority to make determinations under the Dublin III Regulation.
• She argued that medical grounds justified a derogation under Article 17, asserting that necessary treatment would not be available in Sweden.
• The Applicant claimed poor reception conditions in Sweden and a real risk of refoulement to Somalia.
• She requested declarations that only the Minister in person can exercise the powers under the Dublin III Regulation, not officials or IPAT.
• Sought an injunction to restrain deportation pending judicial review.
• Requested an extension of time for late application regarding one of the decisions.

Respondents' Arguments

• The Respondents opposed the injunction application, arguing the balance of convenience favoured proceeding with the transfer.
• They submitted there was no evidence that the Applicant would be treated in a manner incompatible with fundamental rights if returned to Sweden.
• Medical evidence was described as outdated and relating to treatable conditions, with no imminent health risk demonstrated.
• Respondents relied on the principle of mutual trust among Member States under the Dublin III Regulation and relevant CJEU case law.
• They did not resist the grant of leave for judicial review but opposed the interim relief sought.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
NVU v RAT [2020] IESC 46	Minister's exclusive discretion to decide on Article 17 derogation under Dublin III Regulation	Referenced for the principle that only the Minister may exercise Article 17 discretion; issues regarding delegation remain unsettled.
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560	Principle allowing delegation of ministerial powers to officials	The Court considered but did not finally determine the application of Carltona principles to Article 17 powers.
BK v The Minister for Justice [2022] IECA 7	Consideration of issues relating to Dublin III Regulation and judicial review	Used to illustrate similar issues raised and judicial approaches to delegation and review.
AHY v The Minister for Justice [2022] IEHC 198	Judicial review and interpretation of Dublin III transfer rules and medical grounds	Referenced regarding judicial review scope and medical evidence in transfer cases.
RG v IPAT & Ors [2023] IEHC 742	Application of injunction tests and Dublin III transfer procedures	Used to compare medical evidence and principles on injunctions in transfer cases.
AHY v Minister for Justice (C-359/22) ECLI:EU:C:2024:334	CJEU ruling on transfer deadlines and judicial review under Dublin III Regulation	Clarified that judicial review proceedings do not suspend the six-month transfer period.
N.S. v Home Secretary (Joined Cases C-411/10 and C-493/10) ECLI:EU:C:2011:865	Assumption of compliance with fundamental rights by Member States under Dublin III	Supported the view that transfers should proceed absent evidence of fundamental rights breaches.
C.K. v Republika Slovenija (Case C-578/16) ECLI:EU:C:2017:127	Medical grounds for derogation under Dublin III Regulation	Used as a benchmark for serious medical conditions justifying derogation; Applicant's case was weaker in comparison.
CZA (Joined Cases C-228/21, C-254/21, C-297/21, C-315/21 and C-328/21) ECLI:EU:C:2023:934	Emphasis on mutual trust and fundamental rights protection between Member States	Reinforced the importance of mutual trust in the Dublin III transfer system.

Court's Reasoning and Analysis

The Court applied the established test for leave to apply for judicial review, which requires an arguable case rather than a strong or substantial one. It found that the Applicant met this threshold, particularly regarding the question of whether the Minister’s powers under Article 17 can be delegated to officials or bodies such as the IPO or IPAT. The Court noted that this issue remains unsettled in Irish jurisprudence and that the Applicant’s claim was sufficiently arguable to grant leave.

Regarding medical grounds, the Court found the Applicant's evidence less compelling than in comparable cases where Article 17 derogations were granted. Medical records indicated treatable conditions being managed in Sweden, with no evidence of imminent risk to health upon transfer. The Court emphasized the principle of mutual trust underpinning the Dublin III Regulation, which presumes that Member States comply with fundamental rights obligations.

On the injunction application, the Court applied the Supreme Court's principles from Okunade, assessing the balance of convenience. It concluded that the balance favoured the Respondents because the transfer scheme must operate in an orderly and timely manner. The six-month period for transfer under Article 29(1) was critical; if the Applicant was not transferred before expiry, Ireland would assume responsibility. Granting an injunction would frustrate the Dublin III system and cause irreparable prejudice to the Respondents. The Court also noted that if the Applicant succeeds on judicial review after transfer, she can be returned to Ireland under Article 29(3), and judicial review can proceed in her absence.

Holding and Implications

The Court granted leave to apply for judicial review in respect of:

• Certiorari of the Minister's decision dated 10 May 2024 refusing the Article 17 derogation;
• Certiorari of the IPAT decision dated 12 February 2024 affirming the transfer to Sweden.

An extension of time for the late application was also granted.

However, the Court refused to grant an injunction restraining the Applicant's deportation, holding that the balance of convenience favoured the Respondents and the orderly operation of the Dublin III transfer system.

This decision allows the transfer to Sweden to proceed pending judicial review, with no suspension of the statutory transfer deadline.

No new legal precedent was established beyond the confirmation of existing principles regarding leave for judicial review and injunctions in the context of Dublin III transfers.