High Court asks European Court of Justice to clarify EU law amid Brexit concerns

A High Court judge wants the European Court of Justice to urgently decide questions of EU law concerning transfer of international protection applications to the UK, including concerning how those should be treated in the context of Brexit.

Clarification of the issues, raised in a case involving an Asian couple and their child, is urgent for reasons including the child has autism, the question relating to UK withdrawal is of “general” interest and because a “very large number” of cases in the High Court cannot be meaningfully progressed until the issues are decided, Mr Justice Richard Humphreys said.

The transfer of protection applications scheme, known as the Dublin III scheme, requires to be speeded up, which cannot be done until “very unclear” regulations enacted here in 2014 to implement Dublin III are amended, he added.

He would urge the Minister for Justice to “strongly consider” either amending those regulations or introducing new legislation.

Arising from the drafting of the regulations, their meaning depends on the meaning of the relevant EC 2013 Dublin III Regulation, he said.

The questions arose in a case brought by the Asian family after the International Protection Appeals Tribunal (IPAT) decided their protection application should be transferred to the UK.

The family came here from the UK early last year and, in opposing transfer, raised issues about Brexit, medical problems suffered by the man and the fact the child, born in the UK, was being assessed by the HSE for autism.

In his recently published judgment, Mr Justice Humphreys said five questions of EU law arose which require urgent or expedited determination by the Court of Justice of the EU (CJEU).

The questions concern the 2013 EC Dublin III Regulation, governing transfer of protection applications by non-EU applicants to the relevant EU member state.

They particularly concern the meaning and effect of Article 17 of the Regulation, which permits a member state examine a protection application by a non-EU national even if such examination is not the particular state’s responsibility under the criteria laid down by the Regulation.

In the couple’s case, the IPAT had said it had no jurisdiction to exercise an Article 17 discretion to refuse to transfer the couple’s application to the UK, the judge noted.

The State’s position on Article 17 had shifted and its “current” position is only the Minister for Justice has jurisdiction to exercise the Article 17 discretion.

In all the circumstances, he would refer five questions to the CJEU.

The first is whether a national decision maker, when considering any issues in relation to its discretion under Article 17 and/or issues of protection of fundamental rights in the UK, is required to disregard circumstances as they stand at the time in relation to the UK’s proposed withdrawal from the EU.

This arose because the IPAT had said it had to deal with the situation as it is now, where UK withdrawal has not yet happened, the judge said. The State took a similar view.

Mr Justice Humphreys said his view is the national decision maker, in exercising any discretion not to transfer to the UK, and in considering the likely protections for the rights of the persons affected, is required to take into account all relevant circumstances, including the likely situation post Brexit in light of the current state of the process of the UK’s withdrawal.

The UK’s proposed withdrawal is a “legal” as well as a political question and any withdrawal agreement would be subject to review by the CJEU. The possibility of a UK withdrawal without an agreement could potentially raise questions regarding the effective protection of rights post-withdrawal.

The second question concerns whether the words “determining member state” in the Dublin III Regulation includes a state exercising an Article 17 function. The judge agreed with the family’s claim a determining member state must include the determination process under Article 17 while the State disagreed.

The third question relates to Article 6 of the Dublin III Regulation providing the best interests of the child shall be a “primary consideration” for member states with respect to all prcoedures provided for in the Regulation.

The judge wants the CJEU to clarify if the functions of a member state under Article 6 include the discretion under Article 17 not to transfer. His view was the answer to that question is yes but the State argued there was no link between Articles 6 and 17.

The fourth issue concerns whether there is an effective remedy here over a decision made under Article 17. The fifth question concerns Article 20.3 of the Dublin III Regulation and whether or not the national decision maker has to consider the best interests of the child separately from those of their parents. The judge believed Article 20.3 does not require separate consideration of a child’s position unless some reason is shown not to associate the child’s interests with the parents.