State argues UK’s Rwanda policy does not exist legally or apply in High Court cases

Two lead challenges to the Minister for Justice’s designation of the UK as a “safe third country” have failed to specify the point at which they say the designation should have been revoked, lawyers for the State have told the High Court.

The designation, made by Helen McEntee in December 2020 in response to Brexit, enables a finding that an international protection application is inadmissible if the applicant has arrived from the UK and certain criteria are met.

The person can be returned to the UK, as a safe non-EU country, for their asylum application or situation to be determined there. A relatively similar process exists among EU member states under the Dublin III Regulation.

The court heard the two cases brought by international protection applicants who travelled to Ireland from the UK have been selected from a “large group” of judicial review actions. These allege the designation of the UK as a safe third country is unlawful due to the risks arising from potential onward transfer to Rwanda.

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David Conlan Smyth SC, for the State, submitted that the UK’s proposal to fly certain asylum seekers to Rwanda for processing is in a “constant state of flux”. He said the High Court is being asked to condemn the Minister for the difficulties in reacting to a constantly evolving situation.

As a matter of law, he said, there is no Rwanda policy as the UK supreme court found last November it was unlawful due to leaving deportees open to human rights breaches. He noted parliament is considering the Safety of Rwanda Bill, which seeks to overcome legal obstacles. However, he said, this has not been enacted and it cannot be said that it applies to the two applicants in these cases.

One of the men, who was refused asylum status in the UK, seeks to quash the Minister’s decision to return him after she found he would not be subjected to refoulement in the UK.

Ms Justice Siobhán Phelan said she will decide later on the State’s application seeking to add to its defence that he is not entitled to the reliefs sought because he did not disclose that he was convicted of a sexual offence in England.

Mr Conlan Smyth said there is a duty of candour on applicants, yet he did not mention his 2018 conviction as part of his case or report it to the Garda protection services as he is required to do. Failure to report this to gardaí is an arrestable offence, counsel added.

Lawyers for the man said they need to take instructions but submitted the conviction is not relevant to the legal issues in the case.

The court heard the second challenger spent some months in the UK on a student visa before travelling to Ireland. He wants to overturn the International Protection Appeals Tribunal’s finding that his application for protection here was inadmissible due to the designation of the UK as a safe third country.

Mr Smyth said there are “constitutional difficulties” with the two cases, which “effectively ask the court to step into the shoes of the executive”.

He further submitted that the applicants lack the standing to bring their challenges as they are “simply not governed by the policy” that is, anyway, no longer in force, given the supreme court decision.

He noted a UK home office document that said the Rwanda proposal would apply to asylum seekers who arrived in the UK after a particular date and whose journey could be considered dangerous, such as arriving on a small boat or clandestinely in a lorry.

It appears the applicants here do not meet that criteria, and they cannot ask the court to condemn the safe third country designation based on what might happen to other applicants, he said.

Previously, Hugh Southey KC, submitted on behalf of the applicants that Ireland must consider the “ultimate destination” of asylum seekers it returns to the UK.

There is a “real risk” the UK will soon have a provision that permits the removal of asylum seekers to Rwanda, he submitted. The Minister for Justice has not formally reviewed her designation decision since the end of 2020, yet “clearly” the asylum system there is “very significantly different now”, he said.

The case continues on Thursday.

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