Author
The Withdrawal of the United Kingdom from the European Union (Consequential provisions) Act 2020 inserted into the International Protection Act 2015 section 72A, providing for the Designation of safe third countries. The United Kingdom was designated a ‘safe third country’ pursuant to s. 72A in 2020.[1]
Section 21 IPA is amended by the enactment of the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020. Section 119 of the Act of 2020 amends s. 21(2) IPA by the insertion of subsection (c) which states that an application for international protection may be determined inadmissible whereby the applicant arrives in the State from a safe third country that is regarded as a safe country for that person.[2] A “safe country” will be regarded as such whereby:
- The individual has a sufficient connection with the country concerned on the basis of which it is reasonable for them to return there;
- They will not be subjected to the death penalty, torture or inhuman or degrading treatment or punishment if returned to the country concerned;
- The applicant will be readmitted to the country concerned pursuant to the Dublin Regulation.[3]
According to s.119(d), in determining whether an individual has “sufficient connection with the country concerned, regard will be had for the period the individual has spent in the country, whether lawfully or unlawfully, any relationship between the individual and persons in the country concerned, including nationals and residents of that country and family members seeking to be recognised in that country as refugees, the presence in the country concerned of any family members, relatives or other family relations of the individual concerned and the nature and extent of any cultural connections between the individual and the country concerned.[4]
Section 122 of the Act makes provision for s.72A IPA, permitting the Minister for Justice to designate a particular state as a safe third country whereby the state concerned meets certain conditions relating to safety and asylum practices.[5] In 2020 the United Kingdom was designated a safe third country for the purposes of s.119.[6]
In February 2022, it was confirmed that no return orders were issued to the United Kingdom in 2021, or to-date in 2022, pursuant to s.51A of the International Protection Act 2015, in circumstances whereby an applicant’s application was deemed inadmissible under s.21.[7] As of March 2023, 29 inadmissibility decisions were made pursuant to s.51A. It is not clear whether return orders were effected in respect of such decisions.[8] As of April 2024, 45 inadmissibility decisions were made pursuant to s. 51A. It is not clear whether return orders were effected in respect of such decisions.[9]
In February 2024, the High Court began hearing submissions in two lead cases challenges to legality of the Minister for Justice’s designation of the UK as a “safe third country” on the basis that the Minister’s designation was unlawful and ultra vires her powers due to the absence of certain safeguards required by EU law.[10] Both applicants, from Iraq and Nigeria respectively, had been refused asylum in the UK, and challenged by way of judicial review the lawfulness of the Minister’s designation, having regard for the UK’s Rwanda policy, pursuant to which the UK government has agreed to transfer asylum seekers to Rwanda for processing of their protection claims.
Delivering judgment for the High Court in April 2024, Ms. Justice Siobhán Phelan concluded that the failure to require the Minister for Justice to be satisfied that a person would not be subject to serious harm on transfer to a third country, if designated as safe, meant that Ireland was in breach of the requirements of EU law, specifically Art 3(3) of the Dublin III Regulations. Accordingly, the High Court granted declarations that the designation of the UK as a safe third country pursuant to the 2020 Order was contrary to the State’s obligations pursuant to EU law. Moreover, the decisions made by the respondents in respect of the applicants on the basis of this designation were squashed.[11]
[1] S.I. No. 725/2020 – International Protection Act 2015 (Safe Third Country) Order 2020, available at: https://bit.ly/3nYIJpW.
[2] Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020, s.119, available at: https://bit.ly/3o4SP8X.
[3] ibid., s. 119(d).
[4] ibid.
[5] ibid., s.122.
[6] S.I. No. 725/2020 – International Protection Act 2015 (Safe Third Country) Order 2020, available at: https://bit.ly/3nYIJpW.
[7] Minister for Justice and Equality Helen McEntee, Response to Parliamentary Questions No 564, 15 February 2022, available at: https://bit.ly/3D9gVbu.
[8] International Protection Office, March 2023.
[9] International Protection Office, April 2024.
[10] Breaking News, ‘UK’s Rwanda policy does not legally exist, State claims in asylum seeker actions’, 21 February 2024, available at: https://tinyurl.com/3tsjz4k5.
[11] A v. Minister for Justice & Ors, B v. International Protection Appeals Tribunal & Ors [2024] IEHC 183, available at: https://tinyurl.com/v7zemzfe.