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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Y. (D.) v. Minister for Justice, Equality and Law Reform & Ors [2003] IESC 61 (1 December 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/61.html
Cite as: [2003] IESC 61, [2003] 4 IR 235
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Keane C.J.
Denham J.
Murray J.
McGuinness J.
Hardiman J.
81/03
BETWEEN
APPLICANT / RESPONDENT
RESPONDENTS / APPELLANTS
[Judgments delivered by Keane CJ and Hardiman J; Denham J, Murray J and McGuinness J agreed with the judgment of Keane CJ; Hardiman J dissenting]
JUDGMENT delivered the 1st day of December, 2003 by Keane CJ.
Introduction
The facts in this case are not in dispute and may be summarised as follows. The applicant is a Cameroonian national and a law graduate of Yaounde University. In 1998, he left Cameroon and travelled to Germany. There he sought asylum as a refugee on the ground that he had been forced to leave Cameroon because of what he said was persecution arising from political activities which had the objective of replacing, in a legitimate manner, the government of Cameroon. His application for asylum was refused by the German authorities and he made a further application to them which was refused on the 6th September, 2000. Thereafter he left Germany and came to Ireland on the 3rd November, 2000. On the 6th November he applied for a declaration of refugee status in this country and stated in the questionnaire form completed by him that he had applied unsuccessfully for refugee status in Germany. He was informed by the second named respondent (hereafter "the Commissioner") on the 11th May, 2001 that his application was one which should properly be examined by Germany in accordance with the provisions of Article 8 of the Dublin Convention. He was also informed that the appropriate authorities in Germany had agreed to his return under that Convention for the purpose of examining his asylum application. The applicant appealed from that decision and, on the 26th June, 2001, the third named respondent (hereafter "the Appeals Tribunal") dismissed the appeal and affirmed the decision of the Commissioner.
The request by the Commissioner to the German authorities was dated the 19th January, 2001 and was in the following terms:
"I refer to an application for asylum lodged in this State by [the applicant] on 06 November 2000.Pursuant to Article 6(1) of the Dublin Convention (Implementation) Order 2000 and Article 11 of the Dublin Convention, I hereby call upon you to take charge of the above named applicant and admit him to your territory for the purposes of examining his case for asylum in accordance with Article 10(1)(e) of the Dublin Convention. I enclose the standard form for determining the State responsible for examining an application for asylum."
The response from the German authorities was dated the 8th May, 2001 and was in the following terms:
"Your request for takeover from 19.01.2001 is met according to Article 8 Dublin Agreement. The petitioner mentioned above will be accepted by the Federal Republic of Germany. Information concerning the modalities of transfer is enclosed."
The applicant was notified of the failure of his appeal by the Appeals Tribunal on the 2nd July, 2001. The Commissioner then transmitted the file in the matter to the first named respondent (hereafter "the Minister") for consideration by him.
On the 16th July, 2002, the applicant applied to the High Court for leave to apply by way of judicial review for a number of reliefs, including orders of certiorari in respect of the decisions of the Commissioner and the Appeals Tribunal and an injunction restraining the Minister from deporting or otherwise removing or transferring the applicant pending the determination of the proceedings. When this application came on for hearing in the High Court before Finlay-Geoghegan J., the Minister, Commissioner and Appeals Tribunal were represented. On the 18th December, 2002, the learned High Court judge delivered a written judgment in which she found that the applicant was entitled to orders of certiorari in respect of the decisions of the Commissioner and the Appeals Tribunal and she ordered that the applicant's appeal should be remitted to the Appeals Tribunal to be decided in accordance with law.
Pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000, the High Court granted leave to appeal and certified that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. The points of law certified were
"(i) Whether or not Article 10(1)(e) of the Dublin Convention has been incorporated into the law of the State.
(ii) Whether or not [the Commissioner and the Appeals Tribunal] had jurisdiction pursuant to the Dublin Convention (Implementation) Order, 2000 (SI No. 343 of 2000) to make or uphold a decision that Germany be requested to take back the applicant pursuant to Article 10(1)(e) of the Dublin Convention."
The Regulatory Framework
The Dublin Convention, to which Ireland is a party, is a convention intended to determine the state responsible for examining applications for asylum lodged in one or more of the member states of the European Communities. Its provisions do not form part of the domestic law of the state except to the extent to which they have been given the force of law by the Oireachtas. Section 22 of the Refugee Act, 1996 (hereafter "the 1996 Act") enabled the Minister to make orders for the purpose of giving effect to the Convention. In exercise of his powers under that section, he made the Dublin Convention (Implementation) Order, 2000 (S.I. No. 343 of 2000) (hereafter "the Order"). It will be necessary to refer to the provisions of s. 22 of the 1996 Act and of the Order in more detail at a later stage. Initially, however, the general scheme of the Convention and the articles which are particularly relevant to these proceedings must first be considered.
The preamble recites that the contracting states were aware of the need to take measures to avoid situations arising where applicants for asylum under the Geneva Convention were left in doubt for too long as regards the likely outcome of their applications. It also refers to their concern that all such applicants should be guaranteed that their applications would be examined by one of the member states and not referred successively from one state to another without any of the states acknowledging itself to be competent to examine the application for asylum.
Article 3 of the Convention then provides that the member states undertake to examine the application of any alien (i.e. someone other than a national of a member state) who applies at the border or in their territory to any of the states for asylum. Article 3.2 provides that
"That application shall be examined by a Single Member State, which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear."
Article 3.3 provides that the application is then to be examined by that state "in accordance with its national laws and its international obligations".
These are the critical provisions of the convention. They require any application for asylum in any of the member states to be examined by one member state, and one member state alone. The criteria for identifying the state in question are then set out in Articles 4 to 8.
We need not concern ourselves with Articles 4, 5, 6 and 7 which have no application in the present case. They apply inter alia where the members of the family of an applicant for asylum are already legally resident in a member state, where he is in possession of one or more valid residence permits or visas, or where he has irregularly crossed the border into a member state having come from a non-member state.
Article 8 provides
"Where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this convention, the first Member State with which the application for asylum is lodged shall be responsible for examining it."
It is accepted that, in this case, the responsible state within the meaning of Article 8 was Germany. While Article 3.4 and Article 9 provide in specified circumstances for the examination of an application for asylum by a state other than the responsible state, that did not arise in this case.
The Convention contains a number of provisions setting out the obligations of the responsible state in circumstances where a person who has applied to that state for asylum subsequently enters another member state. These provisions, depending on the particular circumstances involved, oblige the responsible state either to "take charge" of a person who has applied to them for asylum and has subsequently applied for asylum in another member state or to "take back" such a person who is in another state and whose application to the responsible state is either under examination in that state, has been withdrawn or has been rejected.
Before setting out the relevant provisions, the definition of "applicant for asylum" contained in Article 1.1(c) should be borne in mind, i.e.
"An alien who has made an application for asylum in respect of which a final decision has not yet been taken."
It is also necessary to bear in mind the definition in Article 1.1(d) of "examination of an application for asylum", i.e.
"All the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the State responsible for examining the application for asylum pursuant to this Convention."
The first of the relevant provisions is Article 3(7) which provides that
"An applicant for asylum who is present in another Member State and there lodges an application for asylum after withdrawing his or her application during the process of determining the State responsible shall be taken back, under the conditions laid down in Article 13, by the Member State with which that application for asylum was lodged, with a view to completing the process of determining the State responsible for examining the application for asylum. [Emphasis added]
This obligation shall cease to apply if the applicant for asylum has since left the territory of the Member States for a period of at least three months or has obtained from a Member State a residence permit valid for more than three months."
In the light of the definition in Article 1.1(c), this provision would appear to apply only to a person who has made an application for asylum in one member state which has not been finally determined and, who then enters another member state and lodges with it an application for asylum after withdrawing the first application. Such a person is to be taken back to the member state with which the first application for asylum was lodged, with a view to completing the process of determining the state responsible for examining the application for asylum. It had no application in the present case, since the application for asylum in Germany was not withdrawn by the applicant while he was present in Ireland: both the applications he had made in Germany had been determined before he arrived in Ireland.
The next relevant article is Article 10 which provides as follows:
"1. The Member State responsible for examining an application for asylum according to the criteria set out in this convention shall be obliged to
(a) take charge under the conditions laid down in Article 11 of an applicant who has lodged an application for asylum in a different Member State.
(b) complete the examination of the application for asylum.
(c) re-admit or take back under the conditions laid down in Article 13 an applicant whose application is under examination and who is irregularly in another Member State.
(d) take back, under the conditions laid down in Article 13, an applicant who has withdrawn the application under examination and lodged an application in another Member State.
(e) take back, under the conditions laid down in Article 13, an alien whose application it has rejected and who is illegally in another Member State.
[Emphasis added]
2. If a Member State issues to the applicant a residence permit valid for more than three months, the obligations specified in paragraph 1, points (a) to (e) shall be transferred to that Member State.
3. The obligation specified in paragraph 1, points (a) to (d) shall cease to apply if the alien concerned has left the territory of the Member State for a period of at least three months.
4. The obligations specified in paragraph 1, points (d) and (e) shall cease to apply if the State responsible for examining the application for asylum, following the withdrawal or rejection of the application, takes and enforces the necessary measures for the alien to return to his country of origin or to another country which he may lawfully enter."
The distinction between the obligations of a state under Article 10.1(a) and (c) should be noted. If the "examination" of the application for asylum in the responsible state has already begun, and the applicant is irregularly in another member state, the obligation on the responsible state is to "take back" the applicant. Where, however, the application has been lodged with the responsible state but the examination has not begun and he has lodged an application in another member state, the obligation of the responsible state is, under Article 10.1(a) and b to "take charge" of the applicant and complete the examination of his application for asylum in the responsible state. Where he has withdrawn the application in the responsible state and lodged an application in another member state, the obligation under Article 10.1(d) is to "take back" the applicant. Where the application in the responsible state has been rejected and he is illegally in another member state, the obligation again on the responsible state is to "take back" the applicant.
It is clear that Article 10.1(a), (b), (c) and (d) were not applicable in the present case. While two applications for asylum had already been made by the applicant in Germany, they had both been examined and rejected. Accordingly, the obligation, if any, on Germany as the responsible state was to "take back" the applicant pursuant to Article 10.1(e). The applicable procedures were, accordingly, those laid down in Article 13.1 as follows:
"An applicant for asylum shall be taken back in the cases provided for in Article 3(7) and in Article 10 as follows:
(a) Its request for the applicant to be taken back must provide indications enabling the State with which the request was lodged to ascertain that it is responsible in accordance with Article 3(7) and with Article 10;
(b) The State called upon to take back the applicant shall give an answer to the request within eight days of the matter being referred to it. Should it acknowledge responsibility, it shall then take back the applicant for asylum as quickly as possible and at the latest one month after it agrees to do so."
The procedures laid down in Article 11, where the obligation on the responsible state is to "take charge" of the applicant under Article 10.1(a) and (d) are significantly different. In that case, the responsible state has a period of three months within which to decide whether it accepts the request.
It can, I think, be presumed that the Convention has prescribed different procedures where the obligation on the responsible state is to "take charge" of an applicant and complete the examination of his application and the obligation to "take back" the applicant under Article 1(c), (d) and (e) because, in the latter set of circumstances, the responsible state will not be embarking de novo on an examination of the application for asylum and, depending on the applicable laws of the state concerned and the stage which has been reached under the procedures mandated by the Geneva Convention, may be solely concerned with questions as to whether the applicant should be deported or allowed to remain in the responsible state, e.g. for humanitarian reasons.
The provisions of s. 22 of the 1996 Act and the Order must next be considered.
Section 22(1) provides that
"The Minister may make such orders as appear to him or her to be necessary or expedient for the purpose of giving effect to the Dublin Convention."
Subsection (2) so far as relevant, provides that
"Without prejudice to the generality of ss. (1), an order under this section may
(a) Specify the circumstances and procedure by reference to which an application for asylum
(i) Shall be examined in the State,
(ii) Shall be transferred to a Convention country for examination, or
(iii) Shall be accepted for examination in the State pursuant to a request made by the Convention country in which the application for asylum was first lodged,
(b) Provide for an appeal against the determination to transfer an application for asylum to a Convention country and for the procedure in relation to such an appeal,
(c) Require that an application for asylum shall not be investigated by the Commissioner until he or she has decided whether a Convention country is responsible for examining the application,
(d) Require that an application for asylum which is being investigated by the Commissioner shall be transferred to a Convention country for examination,
(e) Provide that where an application has been transferred to a Convention country for examination the person concerned shall go to that Convention country "
Subsection (8) provides that
"where an application has been transferred to a Convention country for examination under ss. (2), the application shall be deemed to be withdrawn."
Article 3 of the Order provides that
"(1) Where an application is made under s. 8 of the Act, the Commissioner shall determine whether the application
(a) Should in accordance with the provisions of Article 3(7) of the Dublin Convention be transferred to a Convention country for examination,
(b) Should in accordance with the provisions of Article 10(1)(d) of the Dublin Convention be transferred to a Convention country for examination,
(c) Should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the order in which they appear therein) be transferred to a Convention country for examination, or
(d) Should, in accordance with the criteria aforesaid or otherwise, be examined in the State."
Section 8 of the 1996 Act enables a person arriving at the frontiers of the state to apply to the Minister for a declaration that he is a refugee and subsequent provisions of the Act prescribe the procedures under which the application is to be dealt with by the Commissioner and the Appeals Tribunal.
It should be noted that the Commissioner is specifically empowered under Article 3(1)(b) of the Order to transfer an application under s. 8 to the responsible state in accordance with Article 10(1)(d) of the Convention, i.e. where the applicant has withdrawn an application under examination in the responsible state and applied in this country for asylum. As already noted, however, Article 10(1)(d) of the Convention was not applicable in the present case, nor was Article 3(7). The issue in the present case, accordingly, is to whether the Commissioner was entitled to determine that, in accordance with the criteria set out in Articles 4 to 8 of the Convention, the application under s. 8 should be transferred to another Convention country, i.e. Germany, for examination.
The provisions of Article 6(1) of the Order are also relevant. They provide that
"Where the Commissioner makes a determination under Article 3 that an applicant should be transferred to a Convention country, he or she shall, as soon as may be
(a) cause notice in writing of the determination and of the reasons for it to be given to the applicant, and
(b) Where the country has not already indicated its willingness to admit the applicant to its territory, request the country to admit the applicant to its territory."
Subsection (3) provides that
"An applicant concerned shall not be transferred to a Convention country -
(a) Before the expiry of five working days from the date of the making of such determination as aforesaid, or
(b) where notice of appeal against the determination is given, before the appeal is finally determined or withdrawn."
Article 7 deals with the appeal to the Appeals Tribunal. It also provides that the Commissioner or the Appeals Tribunal, as the case may be, are to notify the Minister of the failure of an application and ss. (11) then provides that
"On receipt of a notification under paragraph (9) or (10), the Minister shall inform the applicant, where necessary and possible in a language that the applicant understands, of the determination or decision and the reasons therefore and the Minister shall arrange for the removal of the applicant to the Convention country concerned."
Finally, I should refer to Article 11(3). It provides that
"If, following the refusal of an application under s. 17 of the Act, the applicant concerned leaves the State and enters a Convention country without the permission of that country, then if the State receives a request from the Convention country to readmit the applicant to the State, the Commissioner shall reply to that request within 8 days of such receipt, and if he or she accedes to the request, shall notify the Minister for the purpose of obtaining his or her consent (which shall not be unreasonably withheld) to readmit the applicant as soon as may be."
It is clear, and was accepted in the arguments in this court, that this provision would be applicable if the roles of Ireland and Germany in the present case were reversed, i.e. if the applicant had made an application for asylum in this country which had been refused and he had subsequently entered Germany illegally.
It should finally be pointed out that it is not clear why the draftsman in Articles 6 and 7 should have referred to a determination by the Commissioner under Article 3 that an applicant should be transferred to a Convention country. The Commissioner is not empowered to make any such determination under Article 3: he may simply determine that an application under s. 8 of the 1996 Act is to be "transferred to a Convention country for examination".
The High Court Judgment
Having considered this regulatory framework, the learned High Court judge concluded that Article 10(1)(e) of the Convention imposed a separate and distinct obligation on a member state to take back an alien whose application it had rejected and who was illegally in another member state and did not appear to envisage the transfer of an application for asylum. She also held that it was not the provision which created the obligation on a member state to take charge of or take back a person who was at the time an applicant for asylum in another member state, stating that such an obligation primarily arose under Article 10(1)(a) with the consequent obligation to complete the examination of the application for asylum under Article 10(1)(b). Having referred in detail to the provisions of s. 22 of the 1996 Act and of the Order, the trial judge said that neither s. 22 of the 1996 Act or the Order authorised the relevant authorities in Ireland to request another member state to take back pursuant to Article 10(1)(e) a person who had made an application for asylum in the state. In the result, she concluded that Article 10(1)(e) had not been implemented in the state.
Having considered the terms of the request to Germany on the 19th January, 2001, the response to the request of the 8th May, 2001, the reasons given by the Commissioner for his decision of the 11th May, 2001 and the terms of the decision of the Appeals Tribunal of 26th June, 2001, the trial judge concluded that the reasoning of the Appeals Tribunal, although not expressly dependent upon Article 10(1)(e), was predicated upon what she held to be an ultra vires request made to Germany pursuant to Article 10(1)(e). Accordingly, she granted the applicant an order of certiorari in respect of the decision of the Appeals Tribunal.
Submissions of the Parties
On behalf of the Minister, the Commissioner and the Appeals Tribunal, Mr. Paul O'Higgins S.C. submitted that the High Court judgment appeared to proceed on the erroneous assumption that it was within the competence of this state to give effect in domestic legislation to the obligations imposed by Article 10(1)(e) of the Convention on other member states. He said that it was clearly not within the competence of the Oireachtas to give legislative effect to the obligations imposed by that provision on any member state other than Ireland. He submitted that, in enacting Article 11(3) of the Order, the state had incorporated the obligations of Ireland under Article 10(1)(e) in domestic law and that that was as far as implementation of that provision could be effected under our law.
Mr. O'Higgins further submitted that, since the intention of the draftsman of s. 22 of the 1996 Act and the Order was clearly to give full effect, so far as was possible, to the provisions of the Dublin Convention, Article 3(1)(c) of the Order should be construed as empowering the Commissioner to implement Article 10.1(e) by requesting the responsible state, in this case Germany, to take back the applicant. He further submitted that the reference in Article 3(1) to an "application" being "transferred" was not a sufficient ground for concluding that the "taking back" of the applicant, in circumstances such as the present, was not envisaged.
On behalf of the applicant, Mr. Durcan S.C. submitted that the powers conferred on the Commissioner by the Order to determine an application made to him under s. 8 of the 1996 Act were as set out in Article 3(1). All the modes of determination available to him under that provision related to an application being transferred to a Convention country for examination or retained for examination in the State. They made no provision for the taking back of an applicant whose application for asylum in the responsible country had already been rejected the situation dealt with by Article 10(1)(e) of the Convention as distinct from transferring an application to the responsible state where the application for asylum had been made in that country but the examination of it had not been completed.
He submitted that, in the absence of any provision in the Order for the taking back, pursuant to Article 10(1)(e) of an applicant, the obligation of the Commissioner, pursuant to the provisions of the 1996 Act, to consider the application of the applicant for asylum continued. There could be no question in the present case of the applicant being returned to Germany so that his application for asylum could be examined in that country: it had already been examined and the examination concluded by its rejection.
Conclusion
I am satisfied that it was not within the competence of the State to give effect in our domestic law to the obligations imposed on the other member states who are parties to the Dublin Convention by Article 10 of the Convention. This state could do no more than give effect to the obligations to which it was made subject by that article. The obligations which Ireland accepted under Article 10(1)(e) were given statutory effect in this jurisdiction by Article 11(3) of the Order.
I am also satisfied that it was clearly the intention of the framers of the Convention that, in a case such as the present, where an application for asylum made in another member state has been rejected in that state and the applicant then arrives illegally in this state, he should be taken back to the state which has already dealt with his application. It would then be a matter for that state to decide, in accordance with its own laws, whether the applicant should be deported to his country of origin or permitted to remain on humanitarian grounds or on any other grounds which those laws would permit being invoked in his case.
In this case, however, the applicant has made an application pursuant to s. 8 of the 1996 Act for a declaration that he is a refugee. That Act establishes a machinery for the determination of such an application by the Commissioner and for the bringing of an appeal to the Appeals Tribunal. Article 3(1) of the Order empowers the Commissioner to transfer such an application to another Convention country for examination in accordance with the provisions of Article 3(7) and Article 10(1)(d) of the Convention. It is clear that those provisions were not applicable in the present case. Article 3(1)(c) also enables him to transfer such an application to another Convention country for examination in accordance with the criteria set out in Articles 4 to 8 of the Convention. However, while under Article 8 of the Convention, Germany was the country responsible for examining the application in the present case, that provision can have no effect where the responsible state has already completed its examination of the application and it has been rejected. In such a case, there can be no question of the application being transferred to the responsible state for examination, since that examination has already taken place.
It would no doubt have been possible for the Order to have provided for an appropriate form of determination by the Commissioner, in a case such as the present, which would have enabled the Minister to arrange for the removal of the applicant to the Convention country concerned. The Order contains no such provisions and I am satisfied that, in their absence, the Commissioner was obliged to proceed with the determination of the application under s. 8 in this case on its merits. It follows that the applicant was entitled to the order of certiorari granted in the High Court, although not for the precise reasons given in the judgment under appeal.
In the course of her judgment, the learned High Court judge referred to the unreported judgment of Smyth J. in Demeter & Ors. v- The Minister for Justice (judgment delivered 26th July, 2002). That was also a case in which an application for asylum had been made in this country by an alien who had previously made an application in another Convention country (Belgium) which had been refused. While a challenge to the validity of a determination by the Commissioner that the application should be transferred to Belgium pursuant to Article 10(1)(e) of the Convention failed, it does not appear that the arguments on behalf of the applicant in the present case were relied on in that case.
I would dismiss the appeal and affirm the order of the High Court.
Keane C.J., 81/03
Denham J.
Murray J.
McGuinness J.
Hardiman J.
Between:
Applicant/Respondent
Respondents/Appellants
JUDGMENT of Mr. Justice Hardiman delivered the 1st day of December, 2003.
On the 3rd November, 2000, the applicant arrived in Ireland and shortly afterwards made an application under s.8 of the Refugee Act, 1996 for a declaration that he is a refugee. In the course of his application he was asked whether he had claimed asylum in any of the countries he transited on his way to Ireland or in any other country. He replied "Yes. In Germany from April, 1998 to September, 2000." His complaint about the German decision was that it was "a largely arbitrary ('speculative') and typically German political decision on the right to asylum in general and towards Cameroonians in particular".
It transpired that the applicant had made an application for asylum in Germany on the 22nd April, 1998, which was refused. He appealed this decision unsuccessfully, the appeal being dismissed on the 11th May, 2000. It appears from this chronology that within six months of the final decision in Germany the applicant had made a further application for refugee status in this country.
Proceedings in Ireland.
On the 19th January, 2001, Ireland made a request to Germany for the purpose of having the asylum application made here determined in Germany, pursuant to certain provisions of the Dublin Convention. On the 8th May, 2001, Germany accepted responsibility for the applicant under Article 8 of the Dublin Convention.
Accordingly, on the 11th May, 2001, the Refugee Applications Commissioner determined that the applicant's application for asylum should properly be examined in Germany. The applicant was notified of this by letter of the same date. This informed him that "The Refugee Applications Commissioner has determined that your application for refugee status is one which should properly be examined by Germany in line with the provisions of Article 8 of the Dublin Convention". The letter gave reasons for this decision.
The applicant then appealed this decision. On the 26th June, 2001, the third-named respondent, Mr. Nicholson, who was a member of the Refugee Appeals Tribunal affirmed the decision of the Refugee Appeals Commissioner. This decision said, in part:-
"I find that the applicant has applied for asylum in Germany and I find that Germany, under Article 8 of the Dublin Convention, being the first member State in which the applicant lodged an application for asylum, is responsible for examining the applicant's application for asylum.
I find that the decision of the Refugee Applications Commissioner is in conformity with the Dublin Convention (Implementation) Order, 2000 and I find that Germany is the member State responsible for accepting or taking back the applicant under Article 8 of the Dublin Convention and to deal with any matter or application in respect of the applicant's asylum. Accordingly, I affirm the original decision and dismiss this appeal".
The applicant then moved for relief by way of judicial review. The first ground advanced puts the nub of his case baldly:-
"The second and third named respondents erred in law in concluding that the Dublin Convention 1990 applied to the applicant's case. The said Convention has no relevance to the case herein as the applicant's application has previously been determined in Germany".
This was the only ground argued in the High Court.
The applicant was successful before the High Court (Finlay Geoghegan J.) on a different and much narrower ground. In her judgment of 18th December, 2002, the learned judge held that the decision of the Commissioner that the application should properly be examined by Germany, by reason of Article 8 of the Convention, was intra vires. She went on, however, to hold that:-
" The implicit decision that the applicant be transferred was based upon a request to Germany made pursuant to a provision of the Convention which has not been implemented in Ireland and relied upon Germany's acceptance of the request made to it pursuant to Article 10(1)(e) [of the Convention]."
She went on to find, in relation to the decision of Mr. Nicholson, that
"Whilst no part of the reasoning of the third-named respondent is expressly dependent upon Article 10(1)(e), it is however predicated upon the ultra vires request made to Germany pursuant to Article 10(1)(e)."
But the learned trial judge had:
" already concluded that Article 10(1)(e) of the Dublin Convention obliges a member State to accept back into that State a person whose application for asylum it has previously refused as a distinct obligation and independently of any obligation to complete an examination of an application for asylum. Accordingly, it does not appear to me that the Oireachtas and the Minister for Justice in enacting s.22 of the Refugee Act, 1996 and the 2000 order made thereunder had implemented this provision in the State".
On this basis the High Court granted an order of certiorari of the decision of the third-named respondent upholding the decision of the second-named respondent to transfer the application of the applicant to Germany, and remitted the applicant's appeal to the Refugee Appeals Tribunal.
The High Court went on, pursuant to s.5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 to grant leave to appeal and to certify that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The points that were certified were:-
(i) Whether or not Article 10(1)(e) of the Dublin Convention has been incorporated into the law of the State and
(ii) Whether or not the second and third respondents had jurisdiction pursuant to the Dublin Convention (Implementation) Order 2000 (SI 343 of 2000) to make or uphold a decision that Germany be requested to take back the applicant pursuant to Article 10(1)(e) of the Dublin Convention.
Scope of Appeal.
Mr. O'Higgins S.C., for the appellants, who had not appeared in the High Court, was simply unable to tell us whether his argument was that advanced in that Court. Mr. Durcan S.C., for the respondent, who had appeared in the High Court, informed us quite frankly that while he naturally endorsed the High Court order, he did not necessarily adopt the approach of the learned High Court judge which had led to that result. He said that his argument in the Court below had been broader than that reflected in the judgment. He was not necessarily contending that Article 10(1)(e) had not been implemented in the State or that, even if that were so, it was dispositive of the present case. He says the approach of the learned High Court judge was not necessarily the correct one. He viewed the case as being about the implementation of the Convention in Irish law by means of the statutory instrument of 2000. He was not narrowly focussing on Article 10(1)(e), though that was an important part of his construction of Article 10 as a whole. Rather, he was saying that neither the Act of 1996 nor the Regulations of 2000 authorised the second and third named respondents to terminate their investigation of the applicant's application on the basis of the simple decision that Germany was the nation responsible for dealing with it. On a true construction of the Irish Statute and Regulations, he said, only the referral of an application to another Convention country for examination entitled Ireland to cease its examination of the application. This had not occurred here.
In the present case, neither party took exception to the others making arguments which went outside the scope of the points certified by the learned High Court judge. I would accordingly accept the arguments actually made. I would, however, expressly reserve my position, until the point arises in a case where it is contested, of the entitlement of either party to go beyond the points certified.
Intent of the subscribers to the Dublin Convention.
I entirely agree with the judgment of the Chief Justice on this topic. He said that he was:-
" satisfied that it was clearly the intention of the framers of the Convention that, in a case such as the present, where an application for asylum made in another Member State has been rejected in that State and the applicant then arrives illegally in this State, he should be taken back to the State which has already dealt with his application. It would then be a matter for that State to decide, in accordance with its own laws, whether the applicant should be deported to his country of origin or permitted to remain on humanitarian grounds or on any other grounds which those laws would permit being invoked in his case".
I did not understand either the judgment of the learned trial judge or the submissions of either party to express any other view of the intention of the framers of the Convention. But three separate views have been expressed as to the application of these principles to the present case. The appellants contend for the validity of the determinations of the second and third named appellants as being fully within their powers. The applicant/respondent says that the provisions of the Convention relied on simply have no application in the present circumstances because it is not simply possible to transmit his application for refugee status for examination in Germany, since that country has concluded its examination. The learned trial judge based her decision not on that broad ground, but on the basis that the request by the State to take charge of the applicant and admit him to its territory for the purpose of examining his case for asylum in accordance with Article 10(1)(e) of the Dublin Convention was invalid. Such request, she held, will normally be made pursuant to Article 10(1)(a) of the Dublin Convention.
Submissions in this Court.
For the appellants, Mr. Paul O'Higgins S.C. submitted that the learned trial judge had misinterpreted Article 10(1)(e). This provision, he said, describes the obligation not of the State, but of the other relevant State of whom a request may be made by us. Article 11(3) of the Dublin Convention (Implementation) Order 2000 implements this obligation, binding upon the State, into Irish law. The result of this, said Mr. O'Higgins, is that if the positions of Ireland and Germany in this case were reversed Ireland would be obliged to take back the alien by virtue of having thus implemented relevant provision of the Dublin Convention here. That is all this State can do: it cannot, and has not attempted to, produce Irish legislation which imposes an obligation on Germany. But, said Mr. O'Higgins, this State was entitled to call upon Germany to take charge of the applicant in pursuance of Germany's obligations under the Dublin Convention.
Mr. O'Higgins went on to direct submissions to the power of the Irish authorities following acceptance of Germany's responsibility by that country. He said that the ordinary power to deport, independently of any provision of the Act of 1996 or the Order of 2000, applied. There would be no need to invoke a specific power in either of these sources. This power, he said, was quite capable of being exercised in support of the underlying policy expressed in Article 3 of the Dublin Convention. Germany has accepted the responsibility of examining the application made by the applicant in Ireland pursuant to Article 8 of the Dublin Convention. This, said Mr. O'Higgins, is a sufficient discharge of the State's obligations. He said that the word "application" applies equally to all applications made by the relevant person, including in this case the application made in Ireland. Germany is responsible for examining that application, and this was held to be so by the learned trial judge and is not the subject of appeal. The fact that Germany has already refused another application by the same person does not take away from this fundamental position. The orders which it is sought to quash do no more than determine that Germany is the appropriate country to examine the application. The learned trial judge fell into error in quashing the determination of the second and third named respondents on the basis that they contained an "implicit decision that the applicant be transferred [which] was based upon a request to Germany made pursuant to a provision of the Convention which has not been implemented in Ireland and relied upon Germany's acceptance of the request made to it pursuant to Article 10(1)(e)". She was, however, quite correct in holding that the decision of the same respondents that Germany was the country which would properly examine the application was intra vires.
Mr. O'Higgins said that any transfer of the applicant to Germany will not take place under the Convention, which did not require to be invoked in this regard. Once the application for asylum could lawfully be dealt with elsewhere the State was within its rights in deporting the applicant to the place where the application would be dealt with.
For the respondent, Mr. Gerard Durcan S.C. said that the Convention was simply irrelevant. Ireland was obliged by reason of its international obligations and specifically by reason of the Refugee Act, 1996 to examine the application which the applicant had made in this country for refugee status. There were only two exceptions to this obligation, firstly if the application is withdrawn and secondly if it is deemed to be withdrawn by virtue of the application being transferred to another State for examination pursuant to s.22(8) of the Act. Neither of these things had occurred here; therefore the State is obliged itself to examine the applicant's application.
Furthermore, Mr. Durcan contended, for the purposes of Article 10 of the Dublin Convention there is only one application. Germany has already examined this application: it has no jurisdiction to re-examine it. Mr. Durcan said that the entire case comes down to the proposition that, under the Convention, there could only be one application for refugee status as of right. It would have been open to the State, he said, to dismiss the application as manifestly unfounded pursuant to s.12 of the Act of 1996. But since this was not done, the application made in this country must be dealt with here.
Mr. Durcan said that he supported the Order granting certiorari of the decision of the second and third named respondents to transfer the application of the applicant to Germany on the basis that this decision necessarily implied that there was no obligation further to consider the application for refugee status here. Mr. Durcan said that the powers of the second named respondent were strictly confined by Article 3 of the Dublin Convention (Implementation) Order. There was simply nothing in that Article reflecting the obligation to "take back" under Article 10 of the Convention. Putting this another way, he said, there was nothing in Article 3 to reflect a power to cut off the examination of an application for refugee status other than in accordance with the provision of s.11.
The impugned decisions in context.
By Article 3 of the Dublin Convention (Implementation) Order 2000, once an application is made under Article 8 of the Refugee Act, 1996, as the applicant has done here, the Commissioner is required to determine whether the application:-
"(a) should in accordance with the provisions of Article 3(7) of the Dublin Convention be transferred to a convention country for examination,
(b) should in accordance with the provisions of Article 10(1)(d) of the Dublin Convention be transferred to a convention country for examination,
(c) should in accordance with the criteria set out in Articles 4 to 8 of the Dublin Convention (applied in the order in which they appear therein) be transferred to a convention country for examination, or
(d) should, in accordance with the criteria aforesaid or otherwise, be examined in the State." (Emphasis added)
The Refugee Applications Commissioner, by a decision communicated on the 11th May, 2001, informed the applicant that she had "determined that your application for refugee status is one which should properly be examined by Germany in line with the provisions of Article 8 of the Dublin Convention". The basis for this decision was that Germany was the first Member State in which the applicant had lodged an application for asylum, and that the appropriate authorities had agreed to his return under the Dublin Convention for the purpose of examining his application. The applicant appealed from this decision and the decision on the appeal was that of the third-named respondent Mr. Nicholson. He upheld the Commissioner's decision on the basis that the applicant had applied for asylum in Germany and that that country was, under Article 8 of the Dublin Convention, as the first Member State in which the applicant lodged an application for asylum, responsible for examining the applicant's application.
Accordingly, the decision of the Commissioner and of the Appeals Tribunal on appeal was a decision on a question which each of these bodies was obliged to address. The learned trial judge has held that these decisions were intra vires. Indeed, she also appears to have thought that the decisions to the effect that the applicant's application should be transferred to Germany for examination correct in themselves. Speaking of the decision of Smyth J. in Demeter & Ors. v. The Minister for Justice (unreported, High Court, 26th July, 2002) she said:-
"We agree that a person who previously made an application for asylum in another Member State which has been refused and who then makes an application for asylum in Ireland is an 'applicant for asylum' within the meaning of the Convention and the 2000 Order. Further, that if in accordance with Article 8 of the Dublin Convention the other Member State is responsible for the examination of the application for asylum then the Commissioner may determine under Article 3 of the 2000 Order that the application be transferred to that Member State and consequently to request the Member State to take charge or take back the applicant pursuant to Article 10 of the Dublin Convention".
I consider that, having regard to the terms of the Convention and the Implementation Order, both the impugned decisions were correct. However, they were quashed in the High Court on the basis that the learned trial judge found, in respect of the Commissioner's decision:-
"In accordance with my above analysis of the Dublin Convention and the 2000 Order the decision made by the Commissioner as recorded in the letter of the 11th May, 2001 that the application should properly be examined by Germany under Article 8 is intra vires. However, the implicit decision that the applicant be transferred was based on a request to Germany made pursuant to a provision of the Convention which has not been implemented in Ireland and relied upon Germany's acceptance of the request made to it pursuant to Article 10(1)(e)".
Speaking of the decision of the third-named respondent, the learned trial judge held:-
"The only reference in the decision of the third-named respondent to Article 10(1)(e) is a reference as part of the recital of facts to the formal request made to Germany under Article 10(1)(e) of the Dublin Convention on the 19th January, 2001. Whilst no part of the reasoning of the third-named respondent is expressly dependent upon Article 10(1)(e) it is however predicated upon the ultra vires request made to Germany pursuant to Article 10(1)(e)."
Accordingly, these two decisions have been quashed, not for any want of fair procedures or intrinsic error in them - they are in fact believed to be correct but because they were 'predicated upon' an ultra vires request to Germany to examine the application for asylum, and to take back the applicant for the purpose of doing so, in discharge of its obligations under Article 10 of the Convention.
I do not consider that either of the impugned decisions can properly be regarded as containing an "implicit decision that the applicant may be transferred". If this applicant is to be transferred to Germany it will be following an exercise of the ministerial power of deportation. On the evidence in this case, this step has yet to be considered. Section 3 of the Immigration Act, 1999 sets out in subsection (2) various circumstances in which the Minister makes a deportation order. These include:
"(e) A person whose application for asylum has been transferred to a convention country for examination pursuant to s.22 of the Refugee Act, 1996."
Section 22 is the section authorising the giving effect to the Dublin Convention in Ireland.
Since any deportation of the applicant will arise as a result of a separate decision by a different authority to those who made the decisions impugned, I do not consider that a decision to transfer the applicant to Germany can properly be described as implicit in the decisions of either the second or the third-named respondent.
This request was made by an officer of the Refugee Applications Commission to a similar official in Germany by letter dated the 19th January, 2001. It was headed "Notice under Article 6(1) of the Dublin Convention (Implementation) Order 2000 and Article 11 of the Dublin Convention". It referred to the applicant's application for asylum in Ireland. It said:-
"Pursuant to Article 6(1) of the Dublin Convention"
and went on:
" I hereby call upon you to take charge of the above-named applicant and admit him to your territory for the purpose of examining his case for asylum in accordance with Article 10(1)(e) of the Dublin Convention".
The German authorities replied by letter received on the 9th May, 2001 saying:-
"Your request for takeover from the 19.01.2001 is met according to Article 8 Dublin Agreement. The Petitioner mentioned above will be accepted by the Federal Republic of Germany. An information concerning the modalities of transfer is enclosed".
The obligation which Germany was thus accepting was, pursuant to the wording of Article 8 of the Dublin Convention, an obligation to examine the application for asylum made by the applicant in Ireland on the 6th November, 2000.
Application of the Dublin Convention.
As noted above, the applicant adopted the position that the Dublin Convention did not apply to his circumstances at all. The basis on which it succeeded in the High Court, however, was a different one and one which in fact assumed the applicability of the Convention. He succeeded on the basis that the request had been made under Article 10(1)(e) instead of Article 10(1)(a). I propose however to examine both points, starting with the more general one.
The applicant has made an application for asylum in this country. By reason of the obligations assumed by the countries party to the Geneva Convention and to the Dublin Convention, he has a right to have this application dealt with. There is no exclusion of this right simply by reason of his having previously made one or more applications for asylum elsewhere. By Article 3(2) of the Dublin Convention his application is to be examined by a single Member State, and the identity of this State is to be determined in accordance with the criteria defined in the Convention. Such examination, by the following sub-Article, is to be dealt with in accordance with that country's national laws and international obligations. By the terms of the Implementation Order, quoted above, it is the responsibility of the Refugee Applications Commissioner to determine the State responsible for dealing with the application. This reflects the provisions of Article 3(4) of the Convention. That sub-Article also provides that on the determination that another country is responsible for dealing with the application Ireland is "relieved of its obligations, which are transferred to the Member State which expresses willingness to examine the application".
The applicant however contends that because Germany has already examined an application for asylum by this applicant, made in 1998 and finally determined in 2000, it is functus in relation to any other application made by this person. In support of this contention Mr. Durcan made the arguments, summarised above, to the effect that under the Convention there can only be one application for refugee status in any single country in respect of any one applicant.
It will be observed, first, that this is clearly not the view of the German State. Furthermore, no authority in support of the contention from any convention country has been cited.
If there were merit in the applicant's broad contention, it would confer a right on an applicant to have his application finally rejected in any Member State and then to proceed to make a further application to another, quite contrary to the objective, set out in the recitals to the Dublin Convention, to "provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States ".
Applications for asylum by individuals in one State after another are quite common, as exemplified in Demeter's case. Each such application is a separate one which triggers (in a convention country) the obligation to consider it. But part of this consideration is a determination as to which convention country should assume responsibility for it. Accordingly, the very principle which allows the application to be made in the first place, despite the applicant's history, equally triggers the State's entitlement to request another State to take responsibility for it, and that other State's right to consent. Nor has the applicant established any legitimate expectation that Ireland will complete the examination of his application; he merely has the legitimate expectation that Ireland will act in accordance with its convention obligations and its own law. These entitle it, inter alia, to determine the State responsible for the examination of the application, and require it to consider and determine this issue before any other.
Mr. Durcan contended that Ireland could have investigated the application and found it manifestly unfounded pursuant to s.12(4)(i) of the Refugee Act, 1996. This defines a "manifestly unfounded application" inter alia as one "prior to which the applicant had made an application for a declaration or an application for recognition as a refugee in a State party to the Geneva Convention and the Commissioner is satisfied that his or her application was properly considered and rejected and the applicant has failed to show a material change of circumstances".
In my view there is no obligation on the State or on the Commissioner to review for propriety the procedures and considerations given to a particular application in another State with whom, according to the recitals of the Dublin Convention, we share a common humanitarian tradition and an objective of harmonisation of asylum policies. The Commissioner, bearing these objectives in mind, is in my view entitled to consider whether, under the terms of the Dublin Convention (which is more restricted in its area of operation than the Geneva Convention referred to in s.12(4)(i)), another Dublin Convention State has responsibility of examining the applicant's application. In this regard I agree with the judgment of Smyth J. in Demeter.
I would add that an examination by a Member State, responsible under the Dublin Convention, which assumes a summary or abbreviated form since there has already been an examination of a previous application by him in that country, continues to be an examination for the purposes of the Dublin Convention.
I am quite satisfied that there is no legal or factual aspect of this application which excludes it from the scope of the Dublin Convention and the Implementation Order and in particular that the final rejection of a previous application in the State otherwise responsible does not have this effect.
Vires to make the request to Germany.
The High Court has held that Article 10(1)(e) of the Dublin Convention has not been implemented in the State and accordingly a "request to the other Member State may not be made pursuant to Article 10(1)(e) ". It is also held that, in any event, sub-paragraph (e) merely "imposes a separate and distinct obligation on the Member State to take back an alien whose application it has rejected and who is illegally in another Member State. It does not appear to envisage the transfer of an application for asylum".
Article 10 of the Dublin Convention sets out certain obligations of "the Member State responsible for examining an application for asylum". In the present case, this is not Ireland: it is Germany. Manifestly, no implementation into Irish law of any part of the Convention can, in and of itself, impose an obligation on Germany. This is so by reason of territorial limitations in the application of Irish laws contained in the Constitution and because of the existence of Germany as a separate sovereign State. Ireland did not invoke Article 10(1)(e) as the basis of its power or authority to make a request of Germany. It called upon Germany to assume responsibility in this particular case in accordance with Germany's obligations under Article 10(1)(e). This is an international obligation which, presumably, has been implemented in German law by an appropriate mechanism, or by operation of law.
Article 11(3) of the Implementation Order provides as follows:-
"If, following the refusal of an application under s.17 of the Act the applicant concerned leaves the State and enters a convention country without the permission of that country, then, if the State receives a request from the convention country to readmit the applicant to the State, the Commissioner shall reply to the request within eight days of such receipt and if, he or she accedes to the request, shall notify the Minister, for the purposes of obtaining his or her consent (which shall not be unreasonably withheld) to readmit the applicant as soon as may be".
This is an implementation of Article 10(1)(e) in Irish law in respect of the only matter connected with it which Ireland is entitled to govern by its domestic law: acceptance in that law of our international obligation under Article 10(1)(e). It is for this reason that, if the positions of Ireland and Germany in this case were reversed, Ireland would be obliged to readmit the applicant. That is precisely the decision Germany has come to on the actual facts of the present case and no doubt that is a correct decision in German law. The contrary has not been contended.
The learned trial judge characterised the request to Germany as an ultra vires request by virtue of what she held to be the
non-implementation in Irish law of Article 10(1)(e). I do not consider that that sub-Article was at any stage relied on as conferring vires to make the request. In the ordinary way, I do not consider that the State requires a specific legal power simply to make a request of another State. However, in so far as a request, legitimate under the terms of the Convention, must be shown in order to terminate Ireland's responsibility itself to examine the application, the provisions cited clearly on the face of the request of the 19th January, 2001 are Article 6(1) of the Implementation Order and Article 11 of the Convention. The latter provides:-
"(1) If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant".
In my view, the request of 19th January, 2001 reflects the wording of this provision. Because the Commissioner has formed the opinion that Germany is responsible for examining the application the State may call on Germany to "take charge of the applicant". A decision about responsibility for examination of the application may thus give rise to an obligation to "take charge of" the applicant. Moreover, by the next paragraph of Article 11, if the request "that charge be taken" is not made within six months then "responsibility for examining the application for asylum shall rest with the State in which the application was lodged", i.e. in this case Ireland.
It appears to me that the vires conferred by Article 11(1) apply regardless of which of the provisions of Article 10 may be considered to apply to the case. Nor do I consider that any invocation of Article 10(1)(e) excludes or is inconsistent with an examination of an application for asylum taking place in the country invited to take charge, or take back, the applicant for asylum. All of the obligations set out in Article 10(1)(a) to (e) are obligations of the Member State "responsible for examining an application for asylum". The application in this case (as the letter of request makes clear) is the application made in Ireland on the 6th November, 2000. It is uncontested that Germany is properly responsible for examining this application. This position is unaltered by the fact that it has previously rejected another application. Article 10(1)(e) is no more than a statement of the obligation specifically in relation to a person whose application a Member State is responsible for examining, but who has previously made another application to that State and, after its rejection, travelled illegally to another Member State.
Accordingly, I consider that Ireland is entitled to transfer this application for examination in Germany. That being so, by virtue of s.22(8) of the Act of 1996 the application made here "shall be deemed to be withdrawn".
In my view, it is a misconstruction of Article 10 to regard the obligations set out in the various subparagraphs of 10(1), or any of them, as being necessarily exclusive of each other. Firstly, all the obligations arise only because the country on whom they devolve is the "country responsible for examining an application according to the criteria set out in this Convention". This applies to the obligation in subparagraph (e) as much to that in subparagraph (a).
Secondly, the circumstances of a particular person may trigger more than one of the Article 10 obligations. Here, the applicant would fall to be "taken back" under 10(1)(e) even if he made no application for refugee status in Ireland. But he did make such application and Germany is liable to examine it and to "take charge" of him for that purpose. However, since he has already been in Germany as an applicant for refugee status and was at that time "taken charge" of by Germany, to "take charge" of him now is also to take him "back". It is meaningless on the present facts to distinguish the two phrases: in his case it is impossible to "take charge" of him without also "taking [him] back". The obligation to take him back is not terminated by the fact that the State invited to take him back has other obligations to him, and those other obligations are not avoided simply by taking him back.
Since Mr. Y. is required to be "taken back" and also to have his application examined in Germany, it follows that no one subparagraph of Article 10 wholly defines Germany's obligations. There is no reason why any single subparagraph should. Equally no exclusive group of subparagraphs will wholly define a country's obligations if, on the facts, other provisions also apply. Similarly, neither Article 11 nor Article 13 exclusively govern the procedural requirements of his case. But, in my view, the request which has been made of Germany meet the requirements of both Articles.
In my opinion the request of the 19th January, 2001 reflects the fact that Germany is obliged, without limitation of time, to take back this applicant under Article 10(1)(e). If he had not made an application for asylum in Ireland, that would exhaust Germany's obligations under the Convention. But he did make such an application. That separate fact triggers separate, but not inconsistent, obligations on the part of Germany which that country is quite willing to accept. Amongst these is the obligation, following a request under Article 11, to take charge of the applicant in pursuit of its obligations under 10(1)(a).
I accept that the distinction between the expressions "take charge of" and "take back" may be of great significance in a particular case. But on the facts of the present case, these phrases overlap in their only possible application to those facts.
The nub of the applicant's case is that Article 3(1) of the Implementation Order makes no express reference to the transfer of an applicant in circumstances where the other country concerned has already examined and rejected an earlier application. But it makes no reference to any special circumstances whatever even though each case will naturally present its own. The fact that there is no reference to the particular situation of a previous application having been rejected elsewhere, or to any other special set of circumstances simply illustrates that it is the receipt of an application for asylum here, without more, which triggers in every case the obligation to consider where the application should be examined. There is no exclusion of the Commissioner's duty to consider this on account of a previous application elsewhere or any other aspect of the applicant's history. But such factors may be crucial in considering which country should examine his current application.
It thus appears to me that both subparagraphs (a) and (b) on the one hand, and subparagraph (e) on the other of Article 10(1) are capable of applying to the applicant in this case, and no doubt in many other cases where multiple applications are made. But the balance of Article 10 provides for different modes of termination of the obligations referred to in (a) to (d) by comparison with the obligation referred to in subparagraph (e): the obligation under subparagraph (d) may be terminated in either way. No doubt for good reason, the framers of the Convention imposed no time limit on the responsibility of a State which has already rejected an application by the same person, but failed to deport him. Ireland, or any other State party to the Convention is fully entitled to make a request based, in part at least, on the indefinite obligation set out in subparagraph (e).
I am unable to agree with the learned trial judge that the obligation contained in Article 10(1)(e) of the Dublin Convention is a "distinct obligation independent of any obligation to complete an examination of an application for asylum". As already mentioned, the obligation at subparagraph (e) is an obligation of "the Member State responsible for examining an application for asylum according to the criteria set out in this Convention". In terms of the language of the Convention, the obligation is not grammatically or syntactically distinguished from the other obligations set out in the sub-Article. It is certainly true that the obligation in subparagraph (e) may arise in circumstances where none of the other obligations described in 10(1) are applicable to the facts of a particular case. But this does not mean that the subparagraph (e) obligation is different in it essential nature from the other obligations, so that if it arises, no other obligation arises. The obligations which arise under Article 10 depend entirely on the facts of the case. In any particular case, as many obligations will arise as are triggered by the facts.
Conclusion.
I consider the request made to Germany on the 19th January, 2001 to be a proper one, which there was power to make and which was duly acceded to by Germany. I would set aside the order of the High Court and substitute an order refusing the relief sought.