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In a judgment on Tuesday, Mr Justice Charles Meenan noted legislation enacted since last year’s High Court ruling has repealed the State’s designation of the UK as a safe third country.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 people seeking international protection, the judge noted.
These changes in the law raised the question of mootness in the appeal proceedings, the judge said.
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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. It enabled Ireland to deem inadmissible an application for asylum from someone who arrived from the UK.
Mr Justice Meenan noted that, since the repeal of the designation, there has been no new order categorising the UK as a safe third country. If the Minister sought to make a new designating order, this 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.
[ How does Ireland decide what countries are ‘safe’ for asylum seekers?Opens in new window ]
The State had accepted that these changes in the law “reflected or mirrored” the High Court ruling, but it argued 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 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 the UK government is no longer pursuing this 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 inadmissible.
In her High Court judgment, Ms Justice Phelan said the decisions should be quashed due to the unlawfulness of the designation.
Mr Justice Meenan said that, as no decision has been made 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”.
Mr Justice Meenan said he was satisfied that the State’s appeal was moot. Ms Justice Máire Whelan and Mr Justice Brian O’Moore agreed with his judgment.
