The State is seeking to appeal a High Court finding that Ireland’s designation of the UK as a “safe third country” was unlawful, the court heard on Tuesday.
Ms Justice Siobhán Phelan last month ruled that the Irish law underpinning the designation did not contain the full suite of safeguards required by EU law.
Disclosure of the intention to seek to appeal the judgment came as the Cabinet approved emergency legislation aimed at recommencing transfers to the UK of asylum seekers who have arrived through Northern Ireland. Work on this legislation has been under way since Ms Justice Phelan’s ruling.
The “safe third country” designation, which is relatively similar to a scheme existing between EU member states, was made by Minister for Justice Helen McEntee in December 2020 in response to the UK’s exit from the EU.
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It enabled Ireland to deem inadmissible an application for asylum from someone who arrived from the UK. The person could then be returned to the UK for their asylum application or situation to be determined there.
While the two High Court challenges to the designation centred on alleged risks arising from potential onward transfer to Rwanda, Ms Justice Phelan made no findings relating to the UK’s policy. Instead, she found shortcomings in the safeguard requirements prescribed in Ireland’s International Protection Act of 2015, which underpinned the designation.
Given she held that the designation was unlawful as a matter of EU law, the judge said she did not need to go on to decide whether it is unsustainable by reason of alleged exposure to a risk of ill-treatment due to the UK’s relationship with Rwanda.
On Tuesday, the State’s senior counsel, David Conlan Smyth, told the judge that the Minister for Justice, Ireland and the Attorney General will ask the court to allow them to appeal her decision. Ms Justice Phelan scheduled for the matter to return before her in two weeks.
Separately, the judge was also told that two South African applicants want to appeal against her dismissal of their challenge to the Minister for Justice’s designation of South Africa as a “safe country of origin”. This designation enables Department of Justice officials to fast-track asylum applications from South Africa.
The safe origin declaration, and accompanying faster processing, applies to 10 non-EU countries: South Africa, Algeria, Botswana, Albania, Georgia, Kosovo, Macedonia, Montenegro, Serbia and Bosnia and Herzegovina.
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