The High Court has refused to halt the deportation of a Somalian man to France on Thursday.
The court heard France has accepted Ireland’s request to accept responsibility for him as it previously refused his claim for international protection.
He has also spent four years in Germany where he was also refused protection.
He arrived here in August 2022 and sought protection on the basis that he was fleeing the Somalian Islamic militant group, Al Shabbab, who killed his father and two brothers.
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When his case was rejected, he brought an appeal claiming if returned to France, where he was homeless, he would face poor reception conditions for asylum seekers and that this was a breach of his European Convention rights.
An appeals tribunal found country of origin information indicated France was a safe country and rejected his appeal.
He then brought a High Court judicial review challenge to that decision and also sought an injunction preventing his deportation to France which had agreed to accept him and deal with his protection application.
That was refused by Ms Justice Niamh Hyland just before Christmas.
Last Friday, the judge was told the judicial review was being withdrawn and new proceedings were being issued and an injunction was also sought stopping his deportation, which was scheduled for Thursday, February 1st.
The court heard he has been requested to turn up at Dublin Airport in the morning.
At the centre of his new challenge was a claim that no decision had been made by the Minister for Justice regarding his application under an EU regulation that governs the return of international protection applicants to the country they first apply in.
Known as the Dublin III Regulation, Article 17 relates to established family reunification rights of protection applicants.
It says a country to which the applicant arrived can either consider the protection application itself under Article 17 or request another country to which the applicant has also arrived to take him back and deal with the application.
Eamonn Dornan, for the man, said the transfer cannot occur without a decision on his client’s application made under Article 17 of the Dublin III Regulation.
He also argued the failure to provide clarity on the Article 17 process has led to confusion among applicants and that there was no formal application process or form for doing so.
Sarah-Jane Hillery, for the international protection authorities and the Minister, submitted that the man is no longer an asylum seeker as his protection claim has been rejected elsewhere. Here, he was making the “epitome of an 11th-hour application”, she said.
The man can continue his judicial review challenge from France and there is a mechanism for his return to Ireland if it transpires he is successful in the case, she said.
France will no longer be obliged to accept him after February 22nd.
Ms Justice Hyland said there was no challenge here to a refusal under Article 17 as no such refusal exists. There was an application to compel the Minister to make such a decision but the judge said she cannot characterise that argument as fair or arguable given that the latest application to the Minister was made just five days before the new High Court proceedings were brought.
It was also an attempt to challenge the transfer to France on the basis that it was outside the powers of the Dublin III Regulation.
“This is a collateral attack given that the transfer decision was challenged in the previous judicial review proceedings and those proceedings were withdrawn,” she said.
That argument would not meet one of the requirements for an injunction of a “fair issue to be tried”, she said.
She also said the man could have made his application in 2022. She agreed that the State will lose the right to return him to France under the Dublin III Regulation if she granted the injunction. Conversely, if he turns out to be right in his proceedings here, he will be entitled to be returned to Ireland.
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