NVU (Pakistan) v Minister for Justice and Equality and Others
IE: The Supreme Court ruled that the discretion power contained in article 17 of the Dublin III Regulation can be exercised only by the Minister
The applicants are a family of a mother and 3 children from Pakistan who first arrived in UK on 28 May 2015 and then moved to Ireland and sought asylum based on alleged violence by the father. In April 2016 the applicants were informed of the application of the Dublin III Regulation and their transfer to Great Britain. The family appealed against and argued that the courts (High Court or Supreme Court) have the power to exercise a discretion to consider an application for refugee status under article 17 of the Dublin III Regulation. The Refugee Applications Tribunal rejected the appeal and stated that only the Minister could enact a regulation to delegate such power to the Tribunal and in the absence of such act, the Tribunal declined to exercise a discretionary power.
The High Court upheld the decision of the tribunal and rejected the judicial review of the family by concluding that there was no discretion vested in anyone apart from the Minister to decline to transfer the family to Great Britain.
The family argued further that changes were made under the International Protection Act 2015 and the functions of the Minister were transferred to the International Protection Office and the International Protection Appeals Tribunal, making thus possible for applicants to request that no transfer take place for humanitarian grounds before the refugee assessment bodies and not before the Minister.
Following a thorough analysis on the case law of the High Court and the Court of Appeal and on the Dublin III Regulation scope, the Supreme Court had to decide on the issue is whether that discretion is vested in the Minister or has been passed to the refugee assessment bodies by statutory instrument.
The Supreme Court ruled that there is no indication in the national legislation as to suggest that the matter if discretion has been devoted from the Minister to the administrative bodies deciding on refugee status. The Supreme Court referred also to the CJEU judgment in the case M.A., S.A. and A.Z. vs International Protection Appeals Tribunal and Others (IE), C‑661/17, 23 January 2019. The Supreme Court noted further that the nature of the article 17 Dublin III Regulation power is not simply limited to the best interests of children or the reunification of family units, but extends beyond that into the exercise of discretion based on humanity or compassion or whereby the State may embrace an obligation which in international and European law does not exist. The Supreme Court found no sign of any such delegation or of any basis on which that discretion could ever be exercised by anyone other than the Minister.
Assessment of Application; Dublin procedure; Pakistan;
Court Service Ireland
Ireland, Supreme Court, NVU (Pakistan) v Minister for Justice and Equality and Others,  IESC 046, S:AP:IE:2019:000193, 24 July 2020. Link redirects to the English summary in the EASO Case Law Database.