State loses appeal over designation of UK as ‘safe third country’
High Court Reporters
The Court of Appeal has dismissed the State’s challenge to a High Court finding that Ireland’s designation of the UK as a “safe third country” was unlawful on the basis that the appeal is moot.
In a judgment issued on Tuesday, Mr Justice Charles Meenan noted that legislation enacted since last year’s High Court ruling has repealed the State’s designation of the UK as a safe third country.
The Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024 also provides for “new and additional safeguards” to persons seeking international protection, the judge noted.
These changes in the law raised the question of mootness in the appeal proceedings, the judge said.
Last year, Ms Justice Siobhán Phelan held that then-Minister for Justice Helen McEntee exceeded her powers by designating the UK a safe third country in December 2020, in response to the UK’s exit from the European Union.
She ruled that the Irish law underpinning the designation, the International Protection Act 2015, did not contain the full suite of safeguards required by EU law.
The designation mechanism was relatively similar to a scheme that exists between EU member states, and enabled Ireland to deem inissible an application for asylum from someone who arrived from the UK.
Mr Justice Meenan noted that, since the repeal of the designation, no new order categorising the UK as a safe third country has been made. If the Minister sought to make a new designating order, it could be the subject of further judicial review proceedings, he said.
The 2024 act also provides for additional protections to people who face a possible “return order”, the judge noted, by introducing other amendments to the International Protection Act 2015.
The State had accepted that these changes in the law “reflected or mirrored” the High Court ruling, but argued that this did not amount to an acceptance of the decision, the judge said.
The High Court proceedings, brought by two asylum seekers against the Minister and the State, concerned the lawfulness of the designation of the UK as a safe third country in light of the then-Conservative government’s Rwanda policy.
The Rwanda policy proposed transferring asylum seekers arriving in the UK to the African nation, where their claims for international protection would be determined.
Mr Justice Meenan noted that the UK government is no longer pursuing the Rwanda policy.
One of the asylum seekers, an Iraqi man of Kurdish origin, was the subject of a return order to the UK at the time of the High Court proceedings. The other, a Nigerian man, had seen his application for international protection deemed inissible.
In her judgment, Ms Justice Phelan said it would seem to follow that these decisions should be quashed by reason of the unlawfulness of the designation.
Mr Justice Meenan said that as the Minister, the State’s International Protection Office – which decides on asylum cases – and related appeals tribunal have not made a decision on the two men’s asylum applications under the changes introduced by the 2024 act, “it must follow that there is no longer a controversy between the parties”.
“Thus, even a decision in favour of the Minister on this appeal would have no practical impact or effect,” the judge said.
Mr Justice Meenan said he was satisfied that the State’s appeal was moot. Ms Justice Máire Whelan and Mr Justice Brian O’Moore were in agreement with his judgment.
