High Court reserves ruling in cases arguing UK’s Rwanda plan invalidates ‘safe third country’ status

A High Court judge has reserved her decision in two “lead” challenges to Ireland’s designation of the UK as a “safe third country” to which asylum seekers can be returned for processing.

Ms Justice Siobhán Phelan said she hoped her ruling will not be significantly delayed but it will take a little time as there is “a lot to consider”.

During a four-day hearing this week, she heard the two actions were selected from a “large group” that alleges the designation of the UK as a safe third country is unlawful due to risks arising from potential onward transfer to Rwanda.

The designation was made by Minister for Justice Helen McEntee in December 2020 in response to Brexit and is relatively similar to a scheme that exists between EU member states.

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It enables a finding that an international protection application is inadmissible if the applicant has arrived from the UK. The person can be returned to the UK, as a safe non-EU country, for their asylum application or situation to be determined there.

The UK’s Supreme Court found last November that Rishi Sunak’s plan to fly asylum seekers to Rwanda is unlawful, as it leaves deportees open to human rights breaches. The UK government is now proposing new laws to overcome legal obstacles.

Hugh Southey KC and Eamonn Dornan BL submitted on behalf of the lead applicants that Ireland must look at the “ultimate destination” for asylum seekers it returns to the UK.

The Minister has to assess third countries’ human rights records, particularly concerning asylum, and must focus on “foreseeable developments”, he said. There is a “real risk” the UK will soon have a provision that permits the removal of asylum seekers to Rwanda, he added.

She has not formally reviewed the situation in the UK since the end of 2020, yet “clearly” the asylum system there is now “very significantly different”, he said.

David Conlan Smyth SC, for the State, said the applicants have failed to specify the point at which they argue the Minister should have revoked her designation. He said the court is being asked to condemn the Minister for difficulties in reacting to a constantly evolving situation.

The Rwanda proposal is in a “constant state of flux” and, as a matter of law, no policy exists as it was found unlawful by the UK courts, he said. Mr Conlan Smyth also took issue with the applicants’ standing, saying they do not meet criteria outlined in a UK home office document for Rwanda deportations.

The lead cases have been brought by two men who travelled to Ireland after spending time in the UK. One came to Ireland after spending some months in the UK on a student visa before travelling here. He is asking the court to overturn the International Protection Appeals Tribunal’s finding that his protection application here was inadmissible because the UK is a safe third country.

The other was refused asylum status in the UK and wants to quash the Minister’s decision to return him to the UK, where, she found, he would not be subjected to refoulement.

Mr Conlan Smyth brought an application during the hearing seeking to add to the State’s defence a claim that the man challenging the return decision failed to disclose to the International Protection Office (IPO), gardaí and the court that he was convicted of a sexual offence in England in 2018.

On Friday, he said this goes to his lack of “candour” and his explanation for the omission, including that the IPO questionnaire did not have enough space to list multiple convictions, is a “remarkable exercise in blame shifting”. The omission of a “serious” offence should deprive him of the orders he seeks, particularly concerning his claim that his data privacy would be breached by the proposed transfer, counsel added.

Mr Southey said it is difficult to see how this relates to the legal issues before this court, which is not being asked to go behind the conviction in England. There is no reason to believe the omission was deliberate, he added.

This issue will be decided as part of the judge’s substantial ruling.

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