THE SUPREME COURT
[Appeal No. S:AP:IE:2017:000111]
Clarke C.J.
MacMenamin J.
Dunne J.
Charleton J.
Finlay Geoghegan J.
BETWEEN
B.S. AND R.S.
APPLICANTS/APPELLANTS
AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS
AND
THE REFUGEE APPLICATIONS COMMISSIONER
NOTICE PARTY
Judgment of Ms. Justice Dunne delivered the 22nd day of May 2019
1. This is an appeal from a decision of the Court of Appeal, Peart J., Birmingham J., Hogan J. (dissenting) delivered on the 14th June, 2017 in B.S. v. RAT and Anor . [2017] IECA 179. Peart J. delivered the majority judgment of the Court in respect of an appeal against an order made in the High Court by Humphreys J. of the 29th July, 2016 refusing reliefs sought by the applicants/appellants (hereinafter referred to jointly as S) by way of judicial review.
2. The principal relief sought by S was an order of certiorari to quash the decision of the Refugee Appeals Tribunal (the Tribunal) dated the 14th July, 2015. The decision of the Tribunal upheld a decision (the Transfer Order) of the office of the Refugee Applications Commissioner (ORAC) dated the 19th May, 2015 made pursuant to Article 12 of Regulation EU No. 604/2013 (the Dublin III Regulation or the Regulation). The decision reflected the opinion of ORAC that the United Kingdom was the Member State responsible for determining the application of S for asylum. The consequence of the decision made by ORAC, which was subsequently upheld by the Tribunal, is that S will be transferred to the United Kingdom for the purpose of assessing their applications for refugee status and that the State will not process their application for international protection given that the application should be made in the United Kingdom under the terms of the Dublin III Regulation.
3. In a determination dated the 29th June, 2018, this Court granted leave to appeal to S and in the course of case management, the legal issues to be addressed in this appeal were identified as follows:
(1) Whether ORAC breached the requirements of Article 34(4) of the Dublin III Regulation with respect to the obligations therein (or any of them) to send the relevant information requests, and in failing to set out the grounds on which the requests were based and state on what evidence, or on what specific and verifiable part of the appellants' statements they were based;
(2) whether ORAC breached the requirement of Article 34(4) and Article 34(2) of the Dublin III Regulation in sending the fingerprints of the appellants to the U.K. with the relevant information requests;
(3) whether, if any breach of the Dublin III Regulation occurred by reason of the manner in which the information requests were sent, such breaches are justiciable on appeal by reason of rights arising under Articles 27 or 34.9 of the said Regulation;
(4) whether RAT erred in law or fact in respect of its treatment of the question of whether ORAC complied with their obligations under Article 21 of the Dublin III Regulation to make "take charge" requests in respect of the appellants "as quickly as possible", and;
(5) if so, what remedy, if any are the appellants entitled to? In particular,
(a) are the appellants entitled to the erasure of any data;
(b) are the appellants entitled to have the determination of the responsible Member State to examine their application reached without regard to the information provided by the United Kingdom?
(6) Insofar as the above questions give rise to issues of European law, are they acte clair ?
Procedural history 4. A procedural history of the background to this case is to be found in the majority judgment of the Court of Appeal and it would be helpful to recite that in full at this point: "2. According to their asylum applications S are Albanian nationals who previously lived in Kosova. They arrived in the State on the 12th December 2014, and two days later made an application for asylum by completing the prescribed Form ASY 1. However, and this is not in dispute, they failed to provide a truthful account of the circumstances of their arrival in the State. Had they done so, it would have been unnecessary for ORAC to make a request for information from the United Kingdom authorities pursuant to Article 34 of the Dublin III Regulation as it would have been obvious that the United Kingdom was the member state responsible for determining their applications under the Dublin III Regulation, and that they should be transferred there for that purpose pursuant to the Regulation, since they each had a valid visa issued by the United Kingdom.
3. Following the lodgment of their asylum applications, each later completed the required form entitled ‘Application for Refugee Status Questionnaire' on the 26th December 2014.
4. On the 15th January 2015, prior to any interview with S, ORAC made an information request to the United Kingdom authorities in respect of S under the provisions of Article 34 of the Dublin III Regulation. The request forms were sent electronically via the secure network ‘DublinNetIreland' which is used for such communications. When making those requests for information, using the prescribed Annex V request form, ORAC supplied the fingerprints of each applicant which had been taken on arrival in the State. In the box on the request form headed 'Indicative evidence enclosed' the word 'Fingerprints' was inserted. In addition, the request form provided details of their names, dates of birth, and place of birth, and stated under 'Details', that each had claimed asylum in Ireland on the 16th December 2014. I should perhaps add that the Annex V request form is headed 'Request for Information pursuant to Article 34 of the Regulation (EU) No 604/2013.
5. The information received back from the United Kingdom authorities, in response to these requests, by letter dated the 12th February 2015 satisfied ORAC that under Article 12.2 of the Regulation the United Kingdom was the member state responsible for examining and determining these applications for refugee status. The information furnished had confirmed that the fingerprints provided matched fingerprints held on the UK records in respect of two persons whose dates of birth matched those of S but under different names. The information was that the persons whose fingerprints matched had each been issued with a multi-visit visa to the UK which were valid from 23rd October 2014 until 23rd April 2015, and had been issued in Warsaw. This information contradicted the answers to a number of questions given by S in their completed questionnaires. At interview on the 30th April 2015 each denied, inter alia , ever having obtained such a visa, and continued to maintain that they were the persons named on their asylum application forms.
6. Chapter III of the Regulation (containing Articles 8-15) provides what is described therein as a hierarchy of criteria for determining which member state is responsible for determining a claim for asylum. Article 12.2 provides that 'where the applicant is in possession of a valid visa, the member state which issued the visa shall be responsible for examining the application for international protection …..'. None of these criteria were applicable other than Article 12.2. ORAC therefore decided that S should be transferred to the United Kingdom on the basis of Article 12.2, and made a so-called ‘take charge' request to the U.K. authorities under Article 21 of the Regulation in each case on the 16th March 2015 - a date which predated the interviews just referred to. The U.K. authorities responded on the 13th April 2015 (again before those interviews) by indicating that they would accept the transfers. S were each duly notified by letter dated the 19th May 2015 of the transfer decision, and of the reason. They were also informed of their right of appeal to the Tribunal within 15 working days, and were provided with a pro forma notice of appeal for completion should they wish to do so. They availed of their right of appeal. However, each appeal was unsuccessful."
Judgment of the High Court 5. The learned High Court judge in the course of his judgment dealt with a number of matters. In regard to the issue as to whether or not the transfer decisions were invalid because the information request failed to state the grounds on which it was based, he referred to reliance placed by counsel for S, who referred to Article 27(1) of the Regulation in relation to "an effective remedy . . . against a transfer decision". He concluded in this regard at para. 23 of this judgment: "Judicial review is not the effective remedy against a transfer decision. Rather the Commissioner's decision to transfer an applicant is subject to a full appeal on all questions of fact and law to the Tribunal. That appeal to the Tribunal constitutes the effective remedy envisaged by Article 27(1) of the Regulation. These applicants have had their effective remedy. They have simply been unsuccessful in that regard. Losing your case does not mean that you are denied an effective remedy."
He went on to observe that in any event the decision of the Tribunal on such an appeal is of course subject to judicial review.
6. He then went on to observe:
"It seems to me to be of some importance that art. 34, which is said to have been breached, is located not in chapter III of the regulation but in chapter VII, which is headed 'Administrative Cooperation' . It is part of a series of provisions which is directed towards member states rather than applicants. A breach of art. 34 by failing to state the grounds of a request is not an infringement of the rights of an applicant. If anything it is an inconvenience to the requested member state, who is being asked to provide information without having been given a more full and complete statement of the reasons why it is sought. But that does not give rise to any cause of action on the part of an applicant."
He went on to conclude that such a request did not breach the data protection rights of any applicant concerned. He concluded that the State had a right to make information requests to other states and that any transfer of data involved in the exercise of such an entitlement is lawful. He added that even if there were such a breach of data protection rights the remedy for such breach is set out in Article 34(9), namely Correction or Erasure of the Data.
Insofar as an issue was raised as to whether or not the take charge request was made "as quickly as possible", he rejected the arguments made on behalf of S. He referred to the opinion of Advocate General Trstenjak in which she stated at para. 28 that the objective of Regulation No. 343/2003 (the precursor of the Dublin III Regulation) is:
". . . not to create procedural safeguards for asylum seekers in terms of the determination of conditions for the acceptance or rejection of their asylum applications. Rather that Regulation primarily governs the allocation of the duties and tasks of the Member States amongst themselves".
7. The High Court also relied on similar views expressed by Advocate General Jääskinen in Bundesrepublik Deutschland v. Kaveh Puid (C-4/11, 18th April, 2013) at para. 58 and by Advocate General Cruz Villalón in Case C-394/12. He concluded therefore that any entitlement, if any existed in the first instance, that an applicant would have a decision on which authority will adjudicate on their asylum claim determined promptly is a purely procedural matter, namely, which authority will adjudicate on the asylum claim. He observed: "If following the expiry of a three-month period from the making of an asylum claim, there was neither a take charge request nor any visible action domestically on the claim, it may be that a legal duty to take one step or the other would arise. But legal duties imposing significant administrative burdens on public bodies cannot reasonably be expected to be put in motion without affording a reasonable time for doing so, in the absence of present circumstances which required immediate action."
Accordingly, he concluded that even if the request in the present was not made "as quickly as possible" that did not invalidate the transfer if the receiving state was still prepared to take the applicants back.
Judgments of the Court of Appeal
8. As mentioned previously the majority judgment of the Court of Appeal was delivered by Peart J. The majority judgment in the Court of Appeal considered at length the authorities relied on by the High Court in coming to its decision on the scope of Article 27 of the Regulation. The decision in the case of Ghezelbash was considered at some length. Having referred to the Advocate General's opinion and the Court's judgment in that case and having set out the underlying facts of the case, Peart J. observed as follows:
"46…. The objective of the Regulation is to establish the criteria for determining the member state responsibility and to put in place mechanisms by which that can be achieved. Chapter III sets out the criteria by which that determination is made. Clearly the asylum applicant now is entitled to have an input into that decision. He may provide relevant information, and is entitled to be interviewed in person as already stated. These are entitlements, and where they are not afforded to him, or the criteria are arguably not correctly applied, he is entitled to challenge any transfer decision that has been made in breach of his/her rights and entitlements.
47. But Article 34 confers no right or entitlement upon the individual asylum applicant. It facilitates the gathering of information by one member state from another member state in order to assist the former in determining for the purposes of the Regulation which state is the member state responsible to examine the application. A prescribed form for the purpose is provided in Annex V for completion by the requesting member state. Any such prescribed form is intended to cover a wide variety of cases. I am sure that in some cases the state requesting information may already have certain evidence upon which to base its request for information. In others however, information or evidence may be scant and imprecise. It may not be possible to provide any meaningful evidence in the prescribed form, yet the same form must be used under Article 34."
The Court went on to conclude on this issue that: "No right of the applicant is affected by any infelicity in the completion of, or lack of information or evidence in, the Annex V Form". It was pointed out that if the requesting state was not satisfied with the information available in the form or that it did not know the purpose of the request it could request further information in order to fill the gap. Indeed, the view was expressed that if the requested state was not satisfied that the request was made in accordance with the terms of Article 34.4 it could communicate that view to the requesting state with a view to putting matters right. However, it was emphasised that these were matters which were to be dealt with between the two Member States and not something for the applicant about whom the information was sought. Accordingly, Peart J. concluded that there was nothing in the Regulation to suggest that the right to an effective remedy because of a failure to correctly apply the criteria also carried with it a right to challenge the decision because the Annex V Form was not completed correctly fully or otherwise in compliance with the provisions of Article 34 or the form itself. Therefore, the Court concluded that the High Court was correct in concluding that there was no infringement of the rights of the applicant and therefore no remedy or cause of action on the part of the applicants in this case by virtue of any "infelicity" in respect of the Annex V Form.
9. The next issue considered by the Court of Appeal concerned the question as to whether or not there had been a breach of data protection law on the basis that the requests for information were sent in breach of Article 34.4 of the Dublin III Regulation. Thus it was argued that the reply to those requests were in breach of the Data Protection Directive. The majority judgment had regard to the fact that the provision of the fingerprints to the U.K. in circumstances where the fingerprints were taken lawfully, and was of the view that ORAC were acting in pursuit of a legitimate interest of obtaining information relevant to its task which was to determine the Member State responsible for examining the appellants' applications. As such this was a legitimate interest for the purposes of s. 2(a) of the Data Protection Act 1988. The Court rejected the submission of the appellants that s. 2(a) of the 1988 Act can only render lawful the processing of data if the function has been carried out in accordance with law. Given their earlier arguments, it was contended by S that the failure to comply with the strict criteria set out in Article 34 meant that the processing of data in this case did not comply with data protection law and was accordingly unlawful. The Court of Appeal rejected these submissions and was satisfied to uphold the decision of the High Court that there was no breach of data protection law in the supply of fingerprints by this State in furtherance of the request for information under Article 34.
10. The issue then considered by the Court of Appeal was the contention that the take back request was not made "as quickly as possible" as required by Article 21 of the Regulation. It was noted that the take back request in this case was not outside the three months period provided for. Thus, unless the view was taken that the take back request was not made "as quickly as possible" there could be no difficulty in respect of this aspect of the case. The Court of Appeal in considering this matter had regard to the decision of this Court in Dekra Eireann Teoranta v. The Minister for the Environment and Local Government [2003] 2 IR 270. That case arose in the context of the time limited for bringing a challenge to a public procurement decision to which Article 84(a) of the Rules of the Superior Court applied which stated that such proceedings must be brought "at the earliest opportunity . . . and in any event within three months from the date when grounds for the application first arose . . .". Although that decision arose in a somewhat different context it was concluded by the Court of Appeal as follows:
"Nevertheless, by a parity of reasoning I am driven to conclude in the present case, and on its own facts, that even though there was a short delay in the making of the take charge request following the receipt of the information from the UK authority - and in a case where false information was given by the appellants in their applications for asylum which necessitated the request for information in the first place - it would be a 'startling proposition', to adopt the words of Fennelly J., if that was to invalidate the transfer request which was accepted rapidly by the UK, with the result that the incorrect member state would be required to assume an unintended responsibility for examining these applications for asylum."
Accordingly, the Court of Appeal rejected the appeal from the decision of the High Court.
11. Hogan J. in his judgment concluded that the question of whether Article 34(4) of the Dublin III Regulation creates enforceable legal rights which individuals can assert must, at least, remain an open one. In those circumstances he felt that the courts in this jurisdiction could not reach a conclusion adverse to the applicants' claims in the absence of an Article 267 reference and a final determination by the Court of Justice. He also considered that a second question arose as to whether, even if Article 34(4) does create enforceable and justiciable rights, it can have any practical implications so far as this case is concerned. He expressed the view that even if the original request did not comply with the requirements of Article 34(4), it was not clear whether Article 34(9) could be invoked to erase and thereby exclude from consideration otherwise accurate information obtained from the U.K. authorities. In those circumstances he expressed the view that he would have favoured adjourning the appeal pending the outcome of an Article 267 reference addressing those questions prior to ruling on the appeal.
Submissions and discussion
12. The underlying issue in this case can be stated quite simply. S arrived in this country, apparently from Kosova, in December 2014. They applied for international protection two days after their arrival. The State sent a "Request for information pursuant to Article 34 of Reg. (EU) No. 604/2013" as set out in Annex V of the Regulation to the U.K. authorities. Enclosed with the Annex V Form were the fingerprints of S. Details of the form have already been described and as was pointed out the form simply gave the date and place of birth, the name of the individual concerned, details of the nature of the request for information which was to be completed by means of a tick box exercise, a statement that the person named in the form had claimed asylum in Ireland together with his wife and finally and this is the critical part of the form under the heading "Indicative evidence enclosed (please specify) ", a box in which the single word "fingerprints" was written. Having sent the Annex V Form, a match was obtained by the U.K. authorities relating to individuals with different names to S but with the same dates of birth. The fingerprints match related to persons who had obtained visas in Warsaw to visit the United Kingdom.
13. In the normal course of events, the fact that visas existed for them is a basis for Ireland to request the U.K. to determine the asylum claim of S given that S had visas, albeit in different names, to visit the U.K. This was duly done and the United Kingdom agreed and a decision was made by ORAC to transfer S to the U.K. for this purpose. S were informed of their right to appeal this decision and the first named respondent herein having heard their appeal refused it. It is that decision which is the subject of these proceedings.
14. At the heart of the challenge to that decision is a complaint that the Annex V Form was not completed properly and that, in those circumstances, the information obtained on foot of that form should, in effect, be disregarded. It is not suggested on behalf of S that the U.K. is not the appropriate Member State responsible to consider their applications. Rather it is said that the information which would justify their application being dealt with in the U.K. cannot be relied on for the reasons already explained.
15. The respondents have said that insofar as there may have been an inadequacy in the completion of the Annex V Form that that is not something which can confer any right on S which can be the subject of litigation by them. The respondents say that the part of the Regulation at issue, namely Article 34, operates at a level between states, thereby excluding S from relying on any failure to complete the Annex V Form accurately.
16. The applicants also complain about an alleged breach of data protection and further raise an issue as to whether the transfer request was made as quickly as possible.
17. There is some dispute between the parties as to factual matters concerning, inter alia, the circumstances in which the visas were obtained and the information as to travel to Ireland provided by S. However, the resolution of these factual issues is not necessary for the purpose of these proceedings.
18. I now propose to consider the issues directed by this Court to be determined.
Issue 1: Whether ORAC breached the requirements of Article 34(4) of the Dublin III Regulation with respect to the obligations therein (or any of them) to send the relevant information requests, and in failing to set out the grounds on which the requests were based and state on what evidence or on what specific and verifiable part of the statements they were based.
19. Article 34(4) of the Regulation provides as follows:
"Any request for information shall only be sent in the context of an individual application for international protection. It shall set out the grounds on which it is based and, where its purpose is to check whether there is a criterion that is likely to entail the responsibility of the requested Member State, shall state on what evidence, including relevant information from reliable sources on the ways and means by which applicants enter the territories of the Member States, or on what specific and verifiable part of the applicant's statements it is based. It is understood that such relevant information from reliable sources is not in itself sufficient to determine the responsibility and the competence of a Member State under this Regulation, but it may contribute to the evaluation of other indications relating to an individual applicant."
20. The Annex V Form is to be found in the Implementing Regulation (EC 118 - 2014).
21. The point made by S is that the Annex V Form did not comply with Article 34(4) requirements because it is said that the information submitted on the form was devoid of any grounds or evidence justifying the making of the request. The use of the word "fingerprints" to establish indicative evidence was not enough. Rather, the complaint is that something more than this by way of grounds or justification for requesting information was required. Reference was made to a U.K. Home Office note published for its own decision makers entitled "Dublin III Regulation, transferring asylum claimants into and out of the U.K. where responsibility for examining an asylum claim lies with the U.K. or with another EU Member State or associated state, Version 1.0". In that document it is stated at pp. 28 to 29 as follows:
"Article 34 requests must not, however, be made without some indication of the basis upon which potential responsibility might be determined. This is to prevent states making excessive numbers of purely speculative requests to each other. A request for information must state the reasons why it is being made with reference to relevant information on the ways and means by which applicants enter the territories of the Dublin states, the specific and verifiable statements made by the applicant [ sic ]. Article 34(4) of the Dublin III Regulation gives further details."
Essentially, the point is made that S has always maintained that the request in this case was sent on an entirely speculative basis, without any grounds and was unlawful. Consequently, it is said that ORAC are not entitled to rely on any information obtained on foot of the "unlawful" request.
22. Counsel on behalf of S take issue with the view of the majority of the Court of Appeal to the effect that the information request herein would not have been necessary had S made it clear that they had a visa for the U.K. It is said that this view is legally and factually wrong. It is suggested that were that the case, forum shopping would be very easy because of the ability of someone to say that they had a visa for a particular country where they would prefer to be and would be sent there on that basis. It was contended that the information request was not undertaken as a consequence of any lie or omission on the part of the appellants. Even though they had indicated that they had transited through a number of countries before arriving in this country, it is pointed out that no information request was made to any of those countries. Accordingly, they argue that there is a manifest breach of the terms of Article 34(4) as neither the grounds for the request nor the evidence upon which it was based was identified to the United Kingdom or indeed to the Tribunal.
23. The respondents in the course of their submissions take issue with the assertion made on behalf of S in the course of their submissions to the effect that the respondents accepted that the terms of the provision had not been complied with. In this context, reference is made by them to a passage in the judgment of Peart J. at para. 19 which they say reflects the precise position taken by the respondents in this regard:
"19. The respondents accept that the request form was not completed in strict compliance with Article 34, in particular since it failed to identify that the information was being sought for the purpose of establishing the member state responsible for determining the applicants' asylum application, but argue (a) that in substance the request was a valid request on foot of which the UK authority was entitled to act should it choose to do so, and (b) that in any event any frailty in the manner in which the request form was completed does not give rise to a right of challenge by the individual who is the subject of the request."
It is pointed out that it has always been part of the respondents' case that the information requests, while not in strict compliance with the terms of Article 34(4), were lawfully made. They used the appropriate standard form required for that purpose and outlined the fact that the appellants were seeking asylum in the State and that information was sought as to travel and/or immigration and/or residence details in the United Kingdom.
24. Reference was made in the course of submissions to the affidavit of Mr. Philip Barnes sworn on behalf of ORAC in the course of these proceedings. Mr. Barnes in his affidavit observed at para. 9:
"It is the experience of the Office of the Refugee Applications Commissioner that a very high proportion of asylum applicants arrive in Ireland having travelled through the United Kingdom and, accordingly, in a large number of cases the UK is the Member State responsible for assessing the relevant asylum applications. In the case of enquiries made to the United Kingdom during the period of October to December 2014, 73% of applicants from 27 different countries had a positive history in the United Kingdom."
25. He went on in his affidavit to say that the Commissioner in seeking information from the United Kingdom did so on good grounds and in accordance with the procedure laid down. The respondents take issue with the characterisation of the evidence of Mr. Barnes in the submissions of the appellants. The appellants had said that the information request was made on a speculative basis but the respondents make the point that the requests were made of the United Kingdom in this case because in the experience of ORAC, the responsibility for examining applications for asylum of a high proportion of applicants in Ireland lies with the United Kingdom.
26. Insofar as the appellants criticise the judgment of Peart J. on the basis that it had wrongly conflated the purpose for which the information request was made with the justification or grounds for making the information request, the respondents disagree with this contention. It is noted that Peart J. observed at para.51 of his judgment that:
". . . in the present case the reason for the request is sufficiently clear for the purposes of the Regulation from the forms actually completed. The requirement to state the grounds for the request is to enable the requested state to know that it is entitled under Article 34.1 to provide the information requested. The requested state must know that the information is being sought for any of three stated purposes: (a) determining the member state responsible; (b) examining the application for international protection; (c) implementing any obligation arising under the Regulation. The ORAC completed the form by stating that 'the applicant has claimed asylum in Ireland . . ."
It was pointed out that the form used is headed "Request for information pursuant to Article 34" which indicated to the recipient that it was sought for one of the three purposes permitted by Article 1 of the Regulation and also that the applicants had claimed asylum on the 16th December, 2014. Accordingly, it was stated by Peart J. in his judgment that: "Commonsense alone would dictate that the recipient of the request for information knows perfectly well and without any doubt the reason for the information request, and if by any remote chance there was still some lingering doubt, the recipient would only have to ask in order to get any further reassurance that it was a lawful request under the Regulation, and that accordingly the information requested can be provided for one of the permitted purposes"
Finally, the point is made on behalf of the respondents that their submissions in this regard to the effect that the information requests while not made in strict compliance with the requirements of Article 34(4) were lawfully made and outlined the basis for the making of the requests in sufficiently clear terms to the United Kingdom Dublin office. They also point out that the submissions were made without prejudice to their contention that Article 34(4) is an interstate provision and that it was open to the requested state to seek further information and/or grounds and/or further detail as regards the basis of the request.
Decision on Issue 1
27. Article 34(4) appears in a section of the Regulation headed "Administrative Co-Operation" and Article 34 itself is headed "Information Sharing". It is clear from the provisions of Article 34(4) itself that the request for information shall set out the grounds on which it is based. The form required to be used for such purpose is that contained in the Implementing Regulations at Annex V as referred to above. It is readily apparent from the nature of the form that it is not intended to be a lengthy discursive document. There are in reality only two boxes in which details could be entered going into any detail about the grounds upon which the information is sought. The first of those relates to the box headed "Indicative Evidence Enclosed" which asks that the requesting state ticks the box Yes or No and then specify the indicative evidence enclosed. It is worth noting that the Implementing Regulations Annex II sets out two lists, one headed "List A - means of proof" and the second headed "List B - circumstantial evidence", in respect of the process of determining the state responsible for examining an application for international protection. In List B under the heading of "Circumstantial Evidence", fingerprints are described as indicative evidence under a number of the headings set out therein. The form goes on to indicate that the request for information concerns certain matters including residence document, travel document, visa, application for international protection, appeal, decision, expulsion and other. Underneath that is the box for filling in the details. It is in this section one would expect to see information as to grounds. It appears from the Annex V Forms in respect of S that the State ticked all of the boxes under the heading "This Request for Information Concerns". In the section headed "Details" the information was set out that the applicant had claimed asylum in Ireland on the 16th December, 2014 together with their respective husband and wife. The respondents have conceded that the form is not "in strict compliance with the requirements of Article 34(4)" and in that regard it could be said that the information provided is terse, to say the least. Having said that, it is nevertheless the case that with the information supplied, the United Kingdom was in a position to furnish information to the effect that persons with the same fingerprints had obtained a visa to visit the United Kingdom. That information on its own was not, as stated expressly in Article 34(4), "in itself sufficient to determine the responsibility and the competence of a Member State under this Regulation", but is a contributory factor in considering the individual application. It is significant that on the facts of this case, the United Kingdom when it received the information request did not consider it necessary to obtain any further information as to the grounds upon which the application for information was being made. Had it had any doubts in this regard, it was entitled to make a request for further information. It could also have rejected the request for information. It did not do so. I have already referred above to the conclusions of the Court of Appeal at para. 51 of the majority judgment on this issue and I would have to say that I agree with its view in this regard. The Annex V Form is short and to the point. It enables a request to be made for the purpose of Article 34(4). It allows the requesting state to indicate what the request for information concerns. It allows the requesting Member State to set out any indicative evidence relied on and that can include fingerprints and it provided some basic detail as to what the circumstances were, namely that the applicants in this case had claimed asylum in this jurisdiction. The facts referred to by Mr. Barnes in his affidavit are not without relevance. It is clear from the affidavit of Mr. Barnes that the vast majority of those who claim asylum in this country come here through the United Kingdom. Ireland and the United Kingdom have a significant number of interactions in the area of international protection for that reason. Had there been any difficulty or doubt in regard to the matter, clearly the United Kingdom could have pursued that. However, the information provided on the form was sufficient for its purposes.
28. In any event one might ask the question what else should have been put into the Annex V Form by way of grounds. The most that might have been required to have been stated was that the applicants for asylum had claimed that they came to Ireland through the United Kingdom and had claimed asylum in this jurisdiction. It is difficult to imagine what more might have been required. It is quite clear that Form V does not envisage a lengthy account to be given of the grounds for seeking information. It is part of a process designed to facilitate member States in coming to a speedy conclusion as what State is responsible for determining a claim for international protection. That being so, could it have been necessary to set out explicitly what is known to be the case in the vast majority of persons who claim asylum in Ireland, namely, that they transited through the United Kingdom? I do not think so. It is for that reason that given the state of knowledge that exists between both countries, I do not think that the failure to articulate this ground more clearly is such as to render the request for information in this case to be a breach of Article 34(4) of the Regulation.
29. In all of the circumstances I am satisfied that the information provided by ORAC was not so deficient as to amount to a breach of the requirements of Article 34(4) of the Dublin III Regulation.
Issue No. 2: whether ORAC breached the requirement of Article 34(4) and Article 34(2) of the Dublin III Regulation in sending the fingerprints of the appellants to the U.K. with the relevant information requests
30. It is contended by S that the respondents were not entitled to send their fingerprints as part of the request for information set out in the Annex V Form. It is said that while there are two central databases used across the Member States, namely the Eurodac database and the VIS (Visa Information System) database, neither are at issue in the present case as the fingerprints were sent directly to the U.K. for the purposes of having the U.K make their own inquiries of their asylum and immigration records using the fingerprints. Ireland and the U.K. are not part of the VIS system as that is part of the Schengen Acquis to which neither Ireland nor the U.K. are parties. It is suggested that although there is a box on the Annex V Form for "indicative evidence", this is intended to be the evidence justifying the making of the information request. I find it difficult to accept that submission, as my observations on Issue 1 in relation to indicative evidence make clear.
31. The main point made on behalf of S is that fingerprints are not intended to be sent with an information request in the manner in which they were sent in this case. It is contended that it is open to the requested state to request such information under Article 34(1) and Article 34(2) which refer to fingerprints. It is stated that they cannot be sent unless requested by another Member State pursuant to Article 34(1). Reliance is placed on the wording of Article 34(1) which states each Member State shall communicate to any Member State "that so requests such personal data concerning the applicant as is appropriate . . .". Article 34(2) identifies the information referred to in para. 1 as including, inter alia , "other information necessary for establishing the identity of the applicant, including fingerprints processed in accordance with Regulation (EU) No. 603/2013. The point is therefore made that in the present case there was no request for fingerprints from the United Kingdom. Reference was made in the course of the submissions to the standard form Dublin III Regulation Information Leaflet in relation to "right to information" which has to be given to individuals affected by the Dublin III Regulation. This document is in the form set out in Annex X of the Implementing Regulation referred to previously. Annex X sets out the use to which fingerprints taken can be used to check within Eurodac or against the Visa Information System. It is submitted that there is nothing to suggest that the fingerprints may be used as part of a first information request as has been done in this case. Accordingly, it is argued that the fingerprints in the present cases were processed beyond and outside the scope of the Dublin III Regulation.
32. The respondents in their submissions make the point that the appellants were lawfully fingerprinted pursuant to the provisions of s. 9A(1) of the Refugee Act 1996, as substituted by s. 7 of the Immigration Act 2003. It is and never has been disputed that the fingerprints of S were taken lawfully pursuant to that provision. Section 9(a)(8) of the Act of 1996, as substituted, provides:
"Information obtained pursuant to subs. (1) may be communicated to Convention countries or a safe third country (within the meaning of s. 22) as if it was information to which subs. (9) or, as may be appropriate, subs. (10) of that section applies."
Reference is made on behalf of the respondents to the fact that in Annex X of the Implementing Regulations an applicant for asylum is advised that: "The authorities of Dublin countries can exchange the data you are providing to them during the Dublin procedure for the sole purpose of fulfilling their obligations under the Dublin and Eurodac Regulations. Throughout the Dublin procedure you have the right for all your personal details and the information you provide about yourself, your family situation, etc. to be protected. Your data can only be used for the purposes defined by law."
It is further noted that the fingerprints were sent to the United Kingdom in a secure manner by an electronic communication system established under Commission Regulation EC No. 1560/2003, known as DublinNet. Thus, it is contended that the provision of the fingerprints to the United Kingdom was in accordance with the provisions of the Refugee Act 1996 as amended and the Dublin III Regulation.
33. The respondents further point out that the appellants have not pointed to any authority or any provision which prohibits the provision of fingerprints for the purposes of an information request, a request which pursues the legitimate objective of identifying the correct Member State responsible for dealing with a claim for asylum under the Dublin III Regulation. On that basis it is argued by the respondents that the transfer of the fingerprints was entirely lawful.
Decision on this issue
34. Article 34(1) and Article 34(2) contemplate a situation in which the country which is the object of the request, in this case the United Kingdom, is entitled to look for information which will enable it to answer the request for information. In that context it is clear from Article 34(2) that fingerprints are something that can be sought by the requested country. However, the fact that the requested country, in this case the U.K., did not ask for fingerprints does not mean that fingerprints cannot be provided. This country is entitled to take the fingerprints and it has never been suggested otherwise. It does so having regard to the provisions of s. 9A of the Refugee Act 1996 as amended. As has already been pointed out s. 9A(8) of that Act as amended allows information to be communicated to a Convention country. The United Kingdom is such a country. Therefore, Ireland was entitled to provide fingerprints to the United Kingdom with the Annex V Form. There is nothing to be found in Article 34 to prohibit that. ORAC, in sending the Annex V Form, indicated that the evidence it was relying on was fingerprints. A suggestion was made in the written submissions of the appellants to the effect that there was a box for "indicative evidence" on the Annex V Form and they submitted that that was intended to be the evidence which justified the making of the information request. I do not agree with that submission. Indicative evidence is carefully defined in the Implementing Regulation and indicative evidence clearly encompasses, in appropriate circumstances, fingerprints. The Annex V Form asks that the nature of indicative evidence be specified and it seems to me that the box provided immediately under the words "indicative evidence" is intended to be used for the purpose of identifying the indicative evidence and not the grounds for seeking the request for information. Accordingly, as I have said I do not accept the submissions of the applicants in this regard. I agree with the views expressed by the Court of Appeal in its majority judgment at paras. 62 to 63 as follows:
"It was not the UK who provided the appellants' fingerprints to this State. It was the reverse. Those fingerprints were lawfully taken under s. 9A of the Refugee Act, 1996 as already stated. The UK in response to the information request simply stated that those prints matched fingerprints that they held on their records, albeit in respect of different named persons. The fact that the fingerprints were not provided by the UK must mean inevitably that they were not provided in breach of any provision of Article 34, notwithstanding that there was no proof that the fingerprints which the UK have on their records were processed in accordance with the Eurodac Regulation. They were simply not provided by the UK to ORAC at all. 63. In relation to the provision of the fingerprints to the UK as part of the information request, there is no question but that this comprises a legitimate interest for the purposes of s. 2A of the Data Protection Act, 1988. As one sees from Article 4 of the Dublin III Regulation itself, the authorities here are obliged upon an application for asylum being made to inform the applicant of a number of matters including at (e) 'the fact that the competent authorities of Member States can exchange data on him or her for the sole purpose of implementing their obligations arising under this Regulation'. By providing to the UK authorities the fingerprints lawfully taken from the appellants, ORAC was doing so in pursuit of the legitimate interest of obtaining information relevant to the task of determining the member state responsible for examining the appellants' applications. That is a legitimate interest which fulfils the conditionality specified in s. 2A of the 1988 Act for the processing of personal data."
35. ORAC acted lawfully in taking the applicants' fingerprints. ORAC was entitled under the provisions of the Act of 1996 to provide information in the form of fingerprints to another Convention country such as the United Kingdom. It is undoubtedly the case that Article 34(1) and (2) permits the requested state to ask for personal data such as fingerprints but the fact that there is such a provision in Article 34 does not preclude this State from communicating that personal data to the United Kingdom in accordance with the Act of 1996. It is difficult to see how the fact that the requested state is expressly permitted to ask for fingerprints could be interpreted as meaning that the requesting state is precluded from sending fingerprints unless asked. Indeed as was noted by the learned trial judge in the course of his judgment in the High Court at para. 28: "Transfer of such information to give effect to the functions of state bodies is clearly within the parameters of ss. 2A(1)(c)(ii),(iv), or (d) of the Data Protection Act 1988, particularly having regard to ss. 9A(1) and (8) of the Refugee Act 1996 (albeit that the latter subsection refers to the precursor of the Dublin III regulation rather than the regulation itself, but general principles of legislative interpretation mean that a reference to any legal instrument should be read as reference to a replacing instrument)."
Thus it is quite clear that there was no breach of Article 34 of the Regulation or indeed of any other data protection law in the transfer and provision of the applicants'/appellants' fingerprints to the United Kingdom.
Issue 3: whether, if any breach of the Dublin III Regulation occurred by reason of the manner in which the information requests were sent, such breaches are justiciable on appeal by reason of rights arising under Articles 27 or 34(9) of the said Regulation
36. As I have already indicated, I am satisfied that no breach of Article 34(4) of the Regulation has occurred notwithstanding the terse terms in which the information contained in the Annex V Form is set out. Ideally, the grounds for the information request should have gone further than simply stating the Applicants had claimed asylum in this country such as setting out the fact that the Appellants had stated that they had transited through the United Kingdom. In circumstances where this is undoubtedly how the majority of cases of those who claim asylum in Ireland arrive in the State, it is hardly necessary to state the obvious. It is for that reason that I concluded that there was no breach of Article 34(4) despite the concession by the Respondents to the effect that there was not strict compliance with it's requirements.
37. Equally, I have concluded that there has been no breach of Article 34(1) and (2) of the Regulation by the provision of personal data in the form of fingerprints in the Annex V Form for the reasons set out above. The fingerprints were lawfully taken by the Irish Authorities and, as I have already explained were lawfully transmitted to the United Kingdom pursuant to the provisions of the Act of 1996, as amended.
38. A definitive answer to the question posed by this issue is best left to a case in which there has been such a breach. To that extent therefore, it is unnecessary to deal with this issue any further.
Issue 4: whether RAT erred in law or fact in respect of its treatment of the question of whether ORAC complied with their obligations under Article 21 of the Dublin III Regulation to make "take charge" requests in respect of the appellants "as quickly as possible"
39. Article 21(1) of the Regulation states:
"Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged within the meaning of Article 20(2), request that other Member State to take charge of the applicant."
40. The take charge request in this case was made on the 16th March, 2015 being exactly three months to the day from when the applications for asylum were made by S on the 16th December, 2014. Following the making of the claim for asylum the fingerprints of S were taken. The Annex V Form was sent to the United Kingdom on the 15th January, 2015 and a response furnishing information as to the visas referred to previously was received from the United Kingdom on the 12th February, 2015.
41. The High Court in its judgment noted at para. 40 that the Tribunal Member in dealing with this aspect of the matter in the appeal by S against the transfer decision referred to the delay in the take charge request as being "not excessively long" as opposed to having taken place "as quickly as possible". The trial judge continued:
"This minor verbal slip does not invalidate the decision. Like any EU instrument, the regulation must be given a purposive interpretation, and it would undermine the purpose of the regulation if the transfer decisions were capable of being held to be invalid as a result of a modest delay in implementation of this type."
He went on to conclude that the three month period was designed to protect the Member State on a purposive interpretation and not an applicant.
42. The Court of Appeal in its judgment concluded at para.77 as follows:
"In my view the words 'as quickly as possible' amount to an exhortation to member states that these matters should be dealt with expeditiously, reflecting the ambition stated in recital (5) of the Regulation that the method of determining the member state responsible 'should in particular make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not compromise the objective of the rapid processing of applications for international protection' .
78. The specified time limit is the outer period of three months. What precedes it gives expression to the desire for rapidity, and in my view nothing more than that. It is directory in nature - not mandatory. Nevertheless, I do not rule out the possibility that in some other case - though I cannot at the moment imagine what exceptional facts could give rise to it - a decision might be challenged on the basis that the decision was made within the three month outer limit but yet be quashed because it was found not to have been made 'as quickly as possible'."
The Court of Appeal then went on to consider the not dissimilar phraseology arising under Order 84A of the Rules of the Superior Courts and referred to the decision in Dekra Eireann Teoranta v. The Minister for the Environment and Local Government [2003] 2 IR 270 to reach the conclusion, relying on the authority of that decision, that: ". . . by a parity of reasoning I am driven to conclude in the present case, and on its own facts, that even though there was a short delay in the making of the take charge request following the receipt of the information from the UK authority - and in a case where false information was given by the appellants in their applications for asylum which necessitated the request for information in the first place - it would be a 'startling proposition', to adopt the words of Fennelly J., if that was to invalidate the transfer request which was accepted rapidly by the UK, with the result that the incorrect member state would be required to assume an unintended responsibility for examining these applications for asylum."
43. Essentially the case made by S in this regard is that the Tribunal erred in law in finding that the "take charge request" sent by ORAC was "not excessively long" and argued that the wrong test was applied by the Tribunal. It was noted that no positive statement had been made by ORAC to the Tribunal that the request was made as quickly as possible, and thus it is contended that the Tribunal made a decision in ORAC's favour without any evidence from ORAC to support that finding.
44. There is no decision of the Court of Justice directly on point in relation to this issue. Reference was made in the submissions of the appellants to the case of Mengesteab v. Germany , Case C-670/16, (26th July, 2017) which concerned a breach of the time limits. In that case it was concluded that a breach of the time limits in circumstances where the maximum time limit had been exceeded meant that the Member State who breached the time limits was responsible for the processing of the claim, thus precluding the making of a transfer order. Of course, that is not the position here. Secondly, reference was made to the case of Shiri v Bundesamt für Fremdenwesen und Asyl, C-201/16 (25th October, 2017). That concerned the enforcement of a transfer order under Article 29 of the Regulation and in that case there was also a breach of the outer limit of the relevant time limit. Reference was made to the opinion of the Advocate General in that case where it was stated at para. 68:
"I therefore conclude that in the particular circumstances of Mr Shiri's case, the period for carrying out the transfer may begin to run only as from the time the future implementation of the transfer is, in principle, agreed upon and certain and only the practical details remain to be determined. That will be a matter for the competent national authorities to establish in accordance with the national law of the requesting Member State. Any such transfer of an applicant for international protection from the requesting Member State to the requested Member State should be implemented as soon as possible and no later than six months after a ruling on the merits of an appeal, or review of a transfer decision, becomes certain."
Finally, reference was made to the decision of this Court in the case of de Roiste v. Minister for Defence [2001] IESC 4 which concerned Order 84 of the Rules of the Superior Courts and considered the phrase "promptly and in any event within" the relevant time limit. It was argued that the phrase used in the Rules was interpreted to mean that an application could fail if made within the time limit but not "promptly" and where no good reason or explanation was offered for the delay.
45. The respondents in their submissions make the point that the phrase "as quickly as possible" is directory and is not the imposition of a mandatory time limit. In the course of the submissions, they compared and contrasted the provisions of Article 21 where an application for asylum had not previously been made in the Member State responsible with Article 23 which deals with the submission of a take back request when a new application for asylum has been lodged in the requesting Member State. The same language is used together with the same time limits, namely two months in respect of a Eurodac hit and three months otherwise. The point is made that the time limits of two or three months stipulated in Articles 21 and 23 would serve no useful purpose if Member States were required to make take charge requests or take back requests "as quickly as possible". The stipulation is not and could not be mandatory. It is accepted that expedition is encouraged by means of the provisions of Article 21 but nevertheless Member States have been afforded a reasonable time to take the necessary steps involved before making a take charge or take back request. In those circumstances, it is contended that the take charge request made in this case is within time and cannot be impugned by reference to the argument that it was not made "as quickly as possible".
46. I have already referred to a number of passages from the judgment of Peart J. in relation to this issue. As can be seen therefrom reference was made in the course of his judgment to the case of Dekra . In that case, Fennelly J. made the following observation at p. 300 of his judgment and I think it is helpful in considering the arguments made herein. He said:
"[The respondent's argument] involves reading the first part of rule 4 of Article 84A entirely separately from the second. The obligation to apply 'at the earliest opportunity' is, it is claimed, distinct from the obligation to apply 'in any case [sic] within three months from the date when grounds for the application first arose.' The only period mentioned, and therefore the only one that can be extended is the three months.
In my view, this is an unduly restrictive reading of the provision. Taken to its logical extreme, this would mean that, even where an application is made within the period of three months, it is out of time, if it is not made at the earliest opportunity. That would be a startling proposition. . . ."
47. I have to say that I can see no logical reason why the comments of Fennelly J. could not be of assistance in respect of a consideration of the provisions of Article 21. The phrase used in Article 21,"as quickly as possible and in any event within three months", is clear in encouraging expedition. What is required is that Member States should act expeditiously and they are given an outer limit of three months. I agree with the observations of Peart J. in the course of his judgment to the effect that the words "as quickly as possible " amount to an exhortation to Member States that these matters should be dealt with expeditiously. As he said and as the respondents have submitted the phrase used in Article 24 is directory in nature and not mandatory. I find it impossible to disagree with his reasoning in this regard. It seems to me by way of general observation that the requirement for expedition is intended in part to be for the benefit of the applicant for international protection. In this regard Recital 5 of the Regulation is instructive. It provides as follows: "Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection."
48. Thus one can see that at the heart of the Regulation is (1) the goal of establishing the appropriate Member State to determine an application for international protection and (2) to protect the individual application to ensure that applications for international protection are processed rapidly. Those goals are important. They are reflected in the time limits provided for. The nature of the search for relevant information to determine the Member State responsible is reflected in the different time limits depending on whether a Eurodac inquiry is possible or whether an alternative method of obtaining the information is required. As has been seen, in relation to a Eurodac inquiry the time limit is two months and in other cases the period provided for is three months. It is also important to bear in mind that there is an obligation on a Member State of whom information is requested to reply within five weeks. This is to be seen in Article 34(5). It goes on to provide that non-compliance with that time limit "shall not relieve the requested Member State of the obligation to reply". It further provides that: "If the research carried out by the requested Member State which did not respect the maximum time limit withholds information which shows that it is responsible, that Member State may not invoke the expiry of the time limits provided for in Articles 21, 23 and 24 as a reason for refusing to comply with a request to take charge or take back. In that case, the time limits provided for in Articles 21, 23 and 24 for submitting a request to take charge or take back shall be extended by a period of time which shall be equivalent to the delay in the reply by the requested Member State."
49. It is quite clear from the terms of the Regulation that take back requests should be processed as quickly as possible. This is apparent from the terms of the Recital referred to above and from the Regulation as a whole but as I have made clear, the exhortation to act expeditiously does not detract from the fact that there is an outer time limit of three months and the request in this case was made within time. Accordingly, there has been no error on the part of the RAT in this regard.
Issue 5
50. If so, what remedy, if any are the appellants entitled to? In particular,
Given the conclusions of the Court to the effect that there has been no breach of Article 34(4) or Article 34(2) of the Dublin III Regulation in relation to the sending of fingerprints of the appellants to the U.K. with the relevant information requests, the question of erasure of any data processed in breach of the Regulation pursuant to Regulation 34(9) or otherwise simply does not arise. Further, there is no reason why the information received cannot be relied on. I therefore propose to make no further comment on this issue.
Issue 6
51. Insofar as the above questions give rise to issues of European Union law, are they acte clair ?
52. I am satisfied that the above questions do not give rise to any need to refer the matter to the European Court.
Conclusion
53. No issue arises that requires to be referred. The appeals are hereby dismissed.
