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Time limit to give effect to Transfer Order did not expire during the course of judicial review proceedings

By: Emma Foley BL

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High Court refuses judicial review of the decision of the Refugee Appeals Tribunal to transfer a Pakistani national to the United Kingdom, on the grounds that: a) the time limit  to give effect to the transfer order provided for in the Dublin III Regulations had not expired during the course of the judicial review proceedings; b) the marriage between the applicant and a European Union citizen was considered to be a marriage of convenience and was therefore invalid; and c) the proceedings would have been dismissed in any event due to being an abuse of process of the courts and abuse of rights under European Union law.

Judicial Review – Asylum and immigration – High Court – Judicial review of decision of the Refugee Appeals Tribunal, affirming the decision of the Refugee Applications Commissioner, to transfer the applicant, a national of Pakistan, to the United Kingdom - European Union (Dublin System) Regulations 2014 - European Communities Act 1972 - Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 – Applicant had previously entered the United Kingdom on a student visa in 2011 and claimed to have returned to Pakistan in 2013 – the Applicant had been granted leave to remain in the United Kingdom until December 2014 – no application was made for international protection or asylum in the United Kingdom - Art. 12(4) of the Dublin III Regulation – United Kingdom acceded to take charge of the Applicant’s request for international protection on 30 November 2015 –– on appeal by the Applicant the Refugee Appeals Tribunal affirmed the transfer decision - Reg. 8(2) of the 2014 Regulation – Applicant alleges he changed his address and never notified the Commissioner and never received the notification – breach of s. 9(4A)(a) of the Refugee Act – applicant deemed to have absconded – 18 month extension of the time limit for transfer invoked – applicant detained on 5 August 2017 – Leave granted for Judicial Review – Applicant sought orders restraining the transfer on the basis that the transfer was in breach of Article 29(1) of the Dublin III Regulations and it would be in breach of Reg 25(7) of European Communities (Free Movement of Persons) Regulations 2015 (‘the 2015 Regulations’) as applicant claimed he married an EU citizen who was residing in the State in 2016 – Applicant obtained an interim ex parte injunction restraining his transfer to the United Kingdom – Evidence of the Respondent that the marriage was a marriage of convenience and registration of the marriage was refused – Applicant argued his transfer to the United Kingdom was not prohibited by Article 29(2) of the Regulation because the time limit applicable in cases where a person absconds of eighteen months from the acceptance by the responsible Member State of the take charge request had been exceeded and that the judicial review proceedings did not have the suspensive effect as per Article 29(3) – Court rejected this argument on the basis that the interim injunction would have had the effect of preventing the Applicant’s transfer to the United Kingdom – Article 29(3) could not be interpreted literally – Court satisfied that for the purpose of Article 29(1) and the six month time limit to give effect to the transfer order runs from the final decision of on an appeal or review where there is a suspensive effect in accordance with Article 27(3) - the interim injunction has suspensive effect as per Art. 29(3) – proceedings were an abuse of process of court.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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