Opinion of the Advocate General — ECLI:EU:C:2023:678
Date: 2023-09-14
Language of the case: English
Subject matter: Asylum policy;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary of the reasons include the following:
• There is no reason to believe that there are any systemic deficiencies in the 
asylum system in Sweden either as alleged or at all.
• There is nothing to indicate that a Transfer to Sweden would pose any real 
risk to the applicant's Article 4 rights under the European Charter of 
Fundamental Rights, nor the Article 3 rights found in the European 
Convention on Human Rights
• It is noted that the applicant has medical issues however there is nothing to 
suggest that there is a lack of availability of appropriate medical treatment in 
Sweden such as to constitute a breach of Article 7 rights under the European 
Charter of Fundamental Rights nor the Article 8 rights found in the European 
Convention on Human Rights. As such, there are no exceptional
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circumstances that would merit not applying the Dublin Regulation to this 
case.
In accordance with the provisions of regulation (EU) number 604/2013, your transfer 
to Sweden will take place as soon as practically possible. ”
30. The article 17 decision was signed by Niamh Bannigan, “officer of the Minister”.
31. I will refer to the reasons set out in the bullet points in the article 17 decision as the “bullet 
point reasons”.
32. The applicant then launched these judicial review proceedings, the second judicial review 
proceedings, on 22nd February 2022 in which he sought also to challenge the article 17 
decision.
33. On 24th February, 2022,1 extended the interim injunction which had been granted to the 
applicant in the first judicial review proceedings. As noted earlier, I gave directions with 
a view to a hearing in the second judicial review proceedings taking place on 15th March 
2022.
34. As Dr. Giller’s second report had not been submitted directly to the Minister’s department 
in support of the request made for the exercise of discretion under article 17(1), on 14lh 
March 2022 (the day before the hearing) the Minister filed a supplemental affidavit in the 
second judicial review proceedings, from John Moore, a HEO in the Irish Naturalisation 
and Immigration Service of the Minister’s department, in which he averred that this 
medical report had been “recently” submitted to the decision maker, Niamh Bannigan, 
who was acting on acting on behalf of the Minister. He said that the decision maker had 
now had the opportunity of reviewing the medical report and had added an addendum to 
the article 17 decision.
35. In that addendum, dated lllh March, 2022 (“the addendum”), Ms. Bannigan states as 
follows:
'7 hereby state that I did not have sight of the second report of Dr. Joan Giller dated 
2nd February, 2022 before issuing the original decision on 16th February, 2022. Having 
now considered this document, I am satisfied that this material would have made no 
difference to the outcome of that decision had I been aware of it at the time ”,
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36. On 15th March 2022, I further extended the interim injunction, to Monday, 28th March 
2022.1 should note for the record that the Minister formally objected to such an extension. 
On Monday 28lh March 2022 I further extended the interim injunction to Monday 4th April 
2022, again without consent.
Reliefs sought
37. In his original statement of grounds in these second judicial review proceedings, the 
applicant sought an order of certiorari quashing the article 17 decision. He sought an 
interlocutory injunction restraining his removal from the State pending the determination 
of these proceedings.
38. He also sought the following declaratory reliefs:
• “that only the Minister can make and/or authorise a decision under Article 
17(1) of the Dublin III Regulation, and that this authority has not been 
delegated to any of her officials within the Department of Justice;
• that an applicant who brings an Order. 84 application to challenge an 
Article 17 decision is entitled to either automatic suspensive relief and/or 
injunctive relief under Article 27 of the Dublin III Regulation pending the 
outcome of judicial review proceedings;
• an applicant who applies under Ord. 84 to challenge an Article 17 decision 
is entitled to automatic suspensive relief under Article 27(3) conferring the 
right to remain in the State pending the outcome of his/her judicial review 
proceedings;
• in the alternative, an applicant who applies for judicial review of an Article 
17 decision is entitled, under Article 27(3), to the opportunity to apply 
within a reasonable time for injunctive relief;
• that Article 27(6) precludes the making of any adverse costs order against 
such an applicant;
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• that an injunction from the Superior Courts preventing transfer operates as 
a stay on the time limit for the transfer of an application under Article 
29(1). ”
39. The applicant confirmed at the hearing that he was not pursuing the declaratory relief that 
Article 27(6) precludes the making of any adverse costs order against such an applicant.
40. As part of the relief included in his statement of grounds, the applicant sought a reference to 
the CJEU under article 267 TFEU referring the question whether, in order to give effect to the 
Dublin III regulation, the effective remedy and suspensive effect provisions of article 27 
encompass a challenge to a decision under article 17(1).
41. The Minister took issue with the applicant seeking a reference by way of substantive relief, 
pointing out that the question of a reference was one for the Court and not a substantive relief 
to be sought inter partes. The applicant pointed out that the Minister for Health brought a 
motion seeking a reference to the CJEU in the case of JTI v Minister for Health and others 
[2015] IEHC 481. While I accept the Minister’s point that it is not technically correct to seek 
an article 267 reference as a substantive relief injudicial review proceedings, I do not believe 
much turns on the point in circumstances where the applicant was simply seeking to make 
clear that he believed a reference was necessary in order to determine the substantive issues 
arising in his case.
42. Following receipt of the addendum, the applicant delivered an amended statement of grounds 
just before the commencement of the hearing. Given the lateness of the addendum, no 
objection was taken by the Minister to the amended statement of grounds. A further amended 
statement of grounds was delivered shortly after the hearing to reflect an accidental omission 
from the amended statement of grounds. For the purposes of this judgment, I will rely on the 
further amended statement of grounds.
43. In the further amended statement of grounds, the applicant sought, in so far as necessary, an 
order of certiorari quashing the addendum and/or quashing the article 17 decision insofar as 
same is to be read together with the addendum.
44.1 will consider the grounds advanced in support of the reliefs claimed by the applicant further 
below.
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The Dublin III System
45. In light of the issues arising in this case, it is necessary to sketch the structure and essential 
elements of the system put in place pursuant to the Dublin III Regulation. The following 
summary of the salient features of the Dublin III regime is adopted, with gratitude, from the 
judgment of Collins J. in BK.
46. The Dublin III Regulation sets out the criteria and mechanisms for determining the Member 
State responsible for examining applications for international protection made in one of the 
Member States by a third country national or stateless person. Dublin III repealed and 
replaced Regulation (EC) No 343/2003 (“Dublin II”) which had in turn replaced the Dublin 
Convention. The Dublin system is a critical component of the European Common Asylum 
System (ECAS) adopted by the EU following the Tampere European Council in 1999. 
Article 78 TFEU confers broad competence on the Union in this area.
47. Article 3(1) of the Dublin III Regulation provides that applications for international 
protection by a third-county national or stateless person who applies on the territory of any 
Member State “shall be examined by a single Member State, which shall be the one which 
the criteria set out in Chapter III indicate is responsible.” Chapter III then sets out a hierarchy 
of criteria for determining the responsible Member State. These criteria are intended to 
provide “a clear and workable method” which “should .. make it possible to determine 
rapidly the Member State responsible, so as to guarantee effective access to the procedures 
for granting international protection and not to compromise the objective of the rapid 
processing of applications for international protection.” (Recitals (5) & (6)).
48. Once the Member State responsible has been identified, it is obliged (as the case may be) to 
“take charge” or “take back” the applicant or other person.
49. Chapter VI makes detailed provision for the procedures to be applied. Where a Member 
State accepts a take charge or take back request “the requesting Member State shall notify 
the person concerned of the decision to transfer him or her to the Member State responsible 
and, where applicable, of not examining his or her application for international protection” 
(Article 26(1)). Article 27(1) then provides that the person concerned "'’shall have the right 
to an effective remedy, in the form of an appecd or review, in fact and in law, against a
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transfer decision, before a court or tribunal”. Recital (19) expressly links such remedy to 
Article 47 of the Charter of Fundamental Rights of the European Union (“the Charter”) and 
states that an effective remedy against “decisions regarding transfer” should “cover both the 
examination of the application of this Regulation and of the legal and factual situation in 
the Member State to which the applicant is transferred.”
50. Article 19(2) Dublin II had also provided for “an appeal or a review” against a decision to 
transfer but in much briefer terms and the scope of such appeal or review had been 
interpreted narrowly by the CJEU (Case C-394/12, Abdullahi v Bundesasylamt [2014] 1 
WLR 1895). In contrast, in a series of decisions, beginning with Case C-63/15 Ghezelbash 
v Staatssercretaris van Veiligheid enJustitie [2016] 1 WLR 3969 (“Ghezelbash”), the CJEU 
has emphasised the broad scope of the Article 27 remedy (see also Case C-578/16 CK v 
Republika Slovenija (“CK"), Case C-l55/15 Karim v Migrationsverket (“Karim "); Case C- 
670/16 Mengesteab v Germany [2018] 1 WLR 865 (“Mengesteab"); Case C201/16 Shiri v 
Bundesamt fur Fremdenwesen undAsyl [2018] 1 WLR 3384 (“Shiri”) and Case C-194/19 
HA v Belgium). The Article 27 remedy encompasses, but is not limited to, disputes 
concerning the application of the criteria for determining the Member State responsible 
under the Dublin III Regulation.
51. Article 27(2) requires Member States to “provide for a reasonable period of time within 
which the person concerned may exercise his or her right to an effective remedy pursuant 
to paragraph 1.” Article 27(3) then provides that:
“For the purposes of appeals against, or reviews of, transfer decisions, Member States 
shall provide in their national law that:
(a) the appeal or review confers upon the person concerned the right to remain in the 
Member State concerned pending the outcome of the appeal or review; or
(b) the transfer is automatically suspended and such suspension lapses after a certain 
reasonable period of time, during which a court or a tribunal, after a close and rigorous 
scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or 
review; or
(c) the person concerned has the opportunity to request within a reasonable period of 
time a court or tribunal to suspend the implementation of the transfer decision pending 
the outcome of his or her appeal or review.
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Member States shall ensure that an effective remedy is in place by suspending the 
transfer until the decision on the first suspension request is taken. Any decision on 
whether to suspend the implementation of the transfer decision shall be taken within a 
reasonable period of time, while permitting a close and rigorous scrutiny of the 
suspension request. A decision not to suspend the implementation of the transfer 
decision shall state the reasons on which it is based. ”
52. Article 17 of the Dublin III Regulation provides that “ [b]y way of derogation from Article 
3(1)", any Member State “may decide to examine an application for international 
protection lodged with it by a third-country national or a stateless person, even if such 
examination is not its responsibility under the criteria laid down in this Regulation” . 
Provision to the same effect was made in Article 3(2) of Dublin II. While recital (17) refers 
to humanitarian and compassionate grounds “in particular”, article 17(1) is not so limited 
and is “intended to allow each member state to decide, in its absolute discretion, on the basis 
of political, humanitarian or practical considerations, to examine an asylum application even 
if it is not responsible under the criteria laid down” in Chapter III: Case C-661/17 MA v 
International Protection Appeals Tribunal [2019] 1 WLR 4975 (“MA”).
53. As will become apparent, articles 17(1) and article 27, and their interaction, are central to 
the issues raised in this case.
54. Two further Dublin III provisions are worthy of note. The first is Article 20(1) which 
provides that the “process of determining the Member State responsible shall start as soon 
as an application for international protection is first lodged with a Member State." The 
second is Article 29. Article 29(1) provides that the transfer of the person concerned from 
the requesting Member State to the Member State responsible shall be carried out “as soon 
as practically possible, and at the latest within six months of acceptance of the request by 
another Member State to take charge or to take back the person concerned or of the final 
decision on an appeal or review where there is a suspensive effect in accordance with Article 
27(3)." Article 29(2) then provides that if the transfer does not take place within that six 
month limit, the Member State responsible is relieved of its obligations and responsibility 
transfers to the requesting Member State. Article 29(2) identifies certain limited 
circumstances in which that time limit may be extended.
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55. The Minister contends that the six month time limit in this case expires at midnight on 6th 
April 2022.
56. Regulations have been made from time to time under section 3 of the European 
Communities Act 1972 for the purpose of giving further effect to the system established by 
the Dublin III Regulation. The current Regulations are the European Union (Dublin System) 
Regulations 2018 (SI No 62/2018) (“the 2018 Regulations”). Article 3 of the 2018 
Regulations confers on international protection officers appointed under the International 
Protection Act 2015 (“the 2015 Act”) collectively constituting the International Protection 
Office (the “IPO”), the functions (inter alia) of determining the Member State responsible 
under the criteria in Chapter III of the Dublin III Regulation and of making transfer 
decisions. Article 6 provides for an appeal against a “transfer decision” (defined in Article 
2(2) as “a decision made by an international protection officer to transfer..”) to IPAT. Where 
such an appeal is brought, the person subject to the transfer decision is entitled to remain in 
the State pending the outcome of the appeal: Article 8(1). Article 8(1) reflects the provisions 
of Article 27(3)(a) of the Dublin III Regulation.
57. As explained by Collins J. in his judgment in Tao v Minister for Justice and Equality [2021] 
IECA 293 (Noonan and Ni Raifeartaigh JJ. concurring), neither the 2018 Regulations nor 
the regulations that it replaced expressly address article 17(1) or specify the person or body 
by whom the option or discretion provided for by it was exercisable in the State. As a result, 
there was significant uncertainty as to the correct position which was definitely resolved 
only by the decision of the Supreme Court in NVU v Refugee Appeals Tribunal [2020] IESC 
46 (“AFU”). For the reasons set out in the judgment of Charleton J. (with which Clarke CJ 
and O’Donnell, MacMenamin and O’Malley JJ. agreed), the court held that that the 
discretion was exercisable by, and only by, the Minister. The decision in NVU was given on 
24lh July 2020.
58. Accordingly, as a matter of Irish law, the IPO is responsible for determining the Member 
State responsible under the criteria in chapter III of the Dublin III Regulation whereas the 
exercise of the article 17(1) discretion is a matter for the Minister. Dublin III permits such 
a division of function: MA, paragraphs 62-69. It follows that the procedure leading to the 
making of a transfer decision by the IPO under the 2018 Regulations does not involve any
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consideration of article 17(1). The jurisdiction of IPAT under article 6 of the 2018 
Regulations is limited to appeals from such transfer decisions and it has no jurisdiction to 
hear an appeal from a decision of the Minister as to the exercise of the article 17(1) 
discretion. That being so. it follows that, in Irish law, the only available remedy in respect 
of such a decision is judicial review under Order 84 RSC.
The issues in this case
59.1 propose to consider, firstly, the applicant’s application for leave to challenge the article 17 
decision by way of judicial review. I will then consider, if necessary, the applicant’s 
application for an interlocutory injunction pending the determination of the proceedings. 
Finally, insofar as appropriate, I will address the question of a proposed reference to the 
CJEU.
60. While the applicant’s application at this point is only for leave to apply for judicial review, 
as the application was on notice, detailed arguments were made both in writing and orally 
on the grounds on which leave was sought. I propose to record those arguments in a little 
more detail than I might otherwise in the circumstances.
Leave application
Grounds of challenge to Article 17 decision and Addendum
61.1 propose firstly to deal with the question of whether the applicant should be granted leave 
to apply for judicial review of the article 17 decision and addendum. While the leave 
application has been on notice to the Minister, it must be remembered that the threshold to 
be suipassed by the applicant remains the low threshold of demonstrating that he has an 
arguable case.
62. In broad terms, the grounds upon which relief is sought, as set out in section E of the 
applicant’s further amended statement of grounds, can be grouped into the following 
categories:
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(a) "Ccirltona” grounds i.e. the decision was not lawfully made by the Minister but rather, 
impermissibly, by an officer on her behalf.
(b) grounds relating to the contents of, and reasons given in, the article 17 decision with a 
particular focus on the Minister’s alleged failure to lawfully deal with the medical 
evidence of serious risk article of infringement of the applicant’s 3 ECHR/article 4 
Charter rights and his article 8 ECHR/article 7 Charter private life rights
(c) grounds relating to the alleged unlawfulness of the addendum
(d) grounds relating to the contention that this judicial review of the article 17 decision 
entitles the applicant to the benefits of article 27, including automatic suspensive relief.
63.1 propose to address the applicant’s leave application in relation to those four sets of 
grounds, in the order set out above.
Carltona arguments
Parties' submissions
64. The applicant submitted that the article 17 process did not benefit from the Carltona principle 
(i.e. the principle that powers conferred on a Minister can be lawfully exercised by his or her 
officials), on the basis that the principle was negated by both article 35 Dublin III Regulation, 
as well as by implication having regard to the article 17 jurisprudence in the State.
65. In that latter regard, the applicant relied on dicta of Charleton J. in NVU v. Refugee Appeals 
Tribunal [2020] IESC 48 where he stated that “there is no sign of any such delegation or of 
any basis on which that discretion could ever be exercised by anyone other than the Minister”, 
in reference to the discretion under article 17. The Minister contends that the applicant’s 
reliance on the judgment of Charlton J, in NVU was entirely misplaced in circumstances 
where the question arising in that case concerned delegation to a separate statutory body and 
not a delegation retained to the Minister.
66. The applicant contends that article 35 requires member states to notify the Commission of 
the “specific authorities responsible for fulfilling the obligations arising under this 
regulation” and that the only responsible authorities notified by Ireland to the Commission
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pursuant to that provision were the Office of the Refugee Applications Commission, the 
Refugee Appeals Tribunal and the Minister. It is contended, that as officers or servants or 
agents of the Minister had not been notified or designated as responsible authorities within 
article 35, the Minister could not seek to delegate her powers under article 17 to such persons.
67. The applicant relied on the dictum of Hogan J. in HN v IP A T [2018] IECA 102 (at paragraph 
18) to the effect that the Minister had an obligation to consider an applicant’s application for 
a decision under article 17. It followed that, pursuant to article 35, the Minister was the 
specified authority for an application under the Regulation, such that article 35 became the 
sole legal source of the Minister’s powers under article 17. Given that the Minister, and not 
her department, had been designated as a specified authority pursuant to article 35, it was 
submitted that the Carltona principle had been displaced. (By contrast, when the UK was a 
member of the EU, it had designated the Home Office as opposed to the relevant minister as 
a specified authority for article 35 puiposes).
68. The question was said to be one of domestic law: in North East Pylon Pressure Campaign 
Ltd v An Bord Pleanala [2019] IESC 8 the question of the designation of An Bord Pleanala, 
as the competent authority responsible for granting permission for projects of strategic 
infrastructural development pursuant to an EU regulation, by an assistant secretary general 
in a government department was accepted to be one of national law.
69. The Minister, for her part, submits that article 17(1) does not engage article 35 at all as it does 
not involve any “obligation” arising under the Dublin III Regulation; article 17 did not specify 
any application process or any other set of obligations as regards requests to the Minister to 
exercise her discretion under article 17. The Minister did accept that there was a procedural 
obligation to deal with a request for exercise of discretion under article 17 but said no 
substantive obligation arose.
70. The applicant in reply said that a procedural obligation was an obligation within article 35 
and that it must further be the case that article 17 is within article 35 as if the Minister decided 
to exercise her discretion in favour of dealing with the applicant’s protection application in 
this State, substantive obligations would also follow.
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71. The Minister contended that no arguable point was raised by the applicant on this issue as it 
was a matter of national procedural autonomy for the State to choose to implement the various 
obligations in the Regulation as it saw fit.
72. The Minister submitted that the Carltona doctrine was explicitly endorsed by the Supreme 
Court in the immigration context in Tang v. Minister for Justice [1996] 2 ILRM 46 and WT 
v. Minister for Justice and Equality [2015] IESC 73 (“WT"). In WT, the Supreme Court held 
that the Carltona principle could be negated by “expressed statutory provision to the contrary, 
or by necessary implication”. The Supreme Court held that “in such cases, then, the test is 
whether it can be established that a statute clearly conveys that the Carltona principle is not 
to recognised, or clearly implies such a conclusion.”
73. It was submitted that there was no express or implied requirement in article 35 or the Dublin 
III Regulation more generally that the Minister must personally take decisions under article
17. It was pointed out that in the designation by Ireland of specific authorities pursuant to 
article 35(1), there had been no specific allocation of tasks under the Regulation as between 
the three designated authorities (which included the Minister) such that no implied ouster of 
Carltona arose.
74. The applicant further contended that as article 35(3) mandates that the responsible authorities 
“shall receive the necessary training with respect to the application of this regulation”, it is 
also incumbent on the Minister to demonstrate that she has the necessary training to make 
article 17 decisions. The Minister submits that the applicant has not discharged the burden of 
proof of demonstrating, even to aprima facia basis, that training was somehow deficient and 
therefore no arguable issue arises on this point.
Arguable grounds
75. In my view, it is arguable that the Minister’s consideration of a request for exercise of 
discretion under article 17 is an “obligation” to be fulfilled “arising under this regulation” 
within the proper meaning of article 35(1). It is further arguable - just about - that as article 
35(1) imposes a mandatory obligation on member states to notify the Commission of the 
specific authorities responsible for fulfilling that obligation, and Ireland appears to have 
notified the Minister as the relevant authority, it is implied that the Minister alone must make
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that decision. I am prepared to grant leave to argue this point as it does not appear to have 
arisen for consideration under the Dublin III Regulation to date.
76.1 do not see that there is any arguable point in respect of the allegation that the Minister or 
decision maker did not have the requisite training pursuant to article 35(3) given that noprima 
facie evidence of an absence of the requisite training was before the court.
Content of the article 17 decision
Applicant’s submissions
77. As a preliminary but overarching point, the applicant submitted that the level of intensity of 
the review by the Court in this judicial review challenge depended in turn on whether an 
article 17 decision was within article 27 as, if it was, given that article 27(1) requires the 
member state to provide for a review of law and fact in relation to the first instance decision, 
the Court’s role in review may be broader than the conventional judicial review grounds 
available in Irish law.
78. It is fair to say that practically all of the grounds of challenge to the content of the article 17 
decision resolve back to how the decision-maker dealt with the medical evidence tendered 
on behalf of the applicant, both in fact and in law.
79. The applicant submitted that the reasons set out in the article 17 decision did not in fact 
address the article 17 application made by the applicant. The applicant contends that the 
Minister acted in breach of the principles set out in CK in that the Minister effectively ignored 
the medical evidence regarding the seriousness of the applicant’s state of health and the 
significant and irreversible consequences to which a transfer might lead.
80. The applicant submitted that the decision maker was in error in holding (in the first bullet 
point reason, as set out in paragraph 29 above) that there was no evidence of “systemic 
deficiencies” in Sweden. He said that he did not assert systemic deficiencies in the asylum 
system in Sweden; rather he complained of breach of his fundamental rights by the fact of 
transfer, as well as risk of detention in Sweden as a vulnerable individual. It was submitted 
that such constituted an error of law and/or having regard to an irrelevant consideration in 
circumstances where the applicant had not made the case that there were systemic
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deficiencies in Sweden. The applicant argues that when his article 3 ECHR/article 4 Charter 
(for ease, “article 3”) rights are engaged it is not an answer to his case to say that there was 
nothing to suggest any lack of availability of appropriate medical treatment in Sweden. He 
relies on CK (at paragraphs 84, 85, 88 and 92) to say that as the evidence is that his transfer 
per se would result in a real risk of a significant and permanent deterioration of his state of 
health, in breach of article 3, the Minister accordingly misapplied herself in law.
81. It was next submitted that in respect of the second and third bullet point reasons outlined in 
the article 17 decision (as set out in paragraph 29 above), the decision-maker erred in focusing 
only on rights arguments and not having regard, in light of the Minister’s broader discretion 
under article 17, to the purely humanitarian considerations disclosed by the evidence as to 
his psychiatric difficulties and the real risk of suicide in the event he was transferred to 
Sweden.
82. The applicant submitted that it was irrational for the decision-maker to state, in the second 
bullet point reason, that “there is nothing to indicate that a transfer to Sweden would pose 
any real risk” to the applicant’s article 3 rights; this flew in the face of the medical evidence 
tendered, including Dr. Giller’s first report which it is accepted was before the decision­
maker at the time of the article 17 decision.
83. The applicant submitted that the third bullet point reason provided in the article 17 decision 
revealed an error of law, in relation to his article 8 ECHR/article 7 Charter (for ease “article 
8”) private life rights, as it failed to engage with the exceptionality of the applicant’s personal 
circumstances, which were sufficiently grave to require a proportionality analysis. The 
applicant says that no proper balancing exercise was carried out by the Minister under article 
8(2). The decision of Humphreys J in Azeem v Minister for Justice and Equality [2017] IEHC 
719 was invoked in this regard. The issue was not one of a disparity of available medical 
treatment but rather the personal impact on the applicant which was the subject of undisputed 
evidence demonstrating a sufficiently grave impact to trigger the requirement for a 
proportionality analysis.
84. The applicant further alleged, as grounds related to the above, that there had been a failure to 
give reasons and irrationality in the decision in the treatment of the uncontradicted medical 
evidence.
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The Minister‘s submissions
85. The Minister, for her part, submitted that there were no arguable grounds for contending that 
the article 17 decision was vitiated by unlawfulness as alleged.
86. The Minister contends that it was perfectly within her entitlement to find that there was no 
risk to the applicant’s article 3 rights and that article 8(1) was not engaged. The Minister 
contends that the proper reading of CK was that the CJEU approached the matter on the basis 
that the member state may choose to conduct its own assessment of an asylum application 
under article 17(1) where it is noted that that an asylum seeker’s medical condition is not 
expected to improve in the short term. However, the Minister submits that the CJEU was very 
clear that even in a case involving significant psychiatric issues including suicidal tendencies, 
there could be no obligation imposed on the relevant authority to apply article 17(1) in such 
circumstances: CK at paragraphs 88, 96 and 97. Accordingly, even where article 3 issues 
arose, the Minister still had a full discretion under article 17; there could be no question of 
the Minister being obliged to exercise her article 17 discretion in favour of the applicant, as 
a matter of EU law.
87. The Minister contended that the applicant had tendered no evidence of deficiencies in the 
likely medical treatment to be afforded to him in Sweden. The Minister relies on the dictum 
in CK that there is a “strong presumption” that the medical care in the receiving state will be 
adequate (at paragraph 70). It is submitted that there is no legal bar per se restraining the 
transfer of a person who has displayed suicidal tendencies so long as, crucially, appropriate 
concrete measures are put in place for the transfer and there are the necessary medical 
supports in place following arrival (CK, paragraps 78 and 79).
88. The Minister relies in this regard on the ECHR decision in AS v Switzerland (application 
number 39350/13) where the Court noted (at paragraph 34) that “as far as the risk of suicide 
is concerned, the Court reiterates that the fact that a person whose expulsion has been 
ordered threatened to commit suicide does not require the State to refrain from enforcing the 
envisaged measure, provided that concrete measures are taken to prevent those threats from 
being realised... The court has reached the same conclusion also regarding applicants who
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have a record of previous suicide attempts”. The Minister also relied on dicta to similar effect 
in Karim v Sweden (application number 24171/05) (at page 15).
89. The Minister further submitted that the CJEU case law and the Dublin III Regulation itself 
(in article 31) imposed an obligation on the transferring state and the receiving state to ensure 
that all proper medical support was put in place for the transfer of a patient who was very ill, 
including mentally ill.
90. The Minister tendered an affidavit from a department official, Paul McGuire, which set out 
that the concerns raised by the applicant in relation to his mental health can be communicated 
to the Swedish authorities with a view to ensuring that he is provided with adequate assistance 
and/or necessary healthcare on arrival in Sweden. He also averred that GNIB will ensure a 
medical assessment is conducted prior to transfer to determine if the applicant is fit to fly and 
to determine, if so, whether he needs to be accompanied by a clinician or a medical escort.
91. The Minister submitted that detention of Dublin 111 transferees was not of itself unlawful for 
failed asylum seekers; the only potential breach of article 5 ECHR would arise if a person 
with mental health difficulties was detained and was not afforded access to any medical care. 
It was submitted that there was no evidence before the court that that would occur here and, 
indeed, the evidence tendered here on behalf of the Minister was to the contrary.
92. In relation to article 8 ECHR, the Minister submitted that the decision maker had engaged 
with the applicant’s submissions and had decided that was no breach and that such a finding 
could not be gainsaid by way of judicial review.
93. As regards the administrative law challenges, the Minister maintained that no arguable 
grounds had been disclosed. There was no question of irrationality, particularly in light of the 
Minister’s absolute discretion under article 17. It was clear that the Minister had considered 
all of the issue raised by the applicant; the decision maker said as much in the decision. 
Reasons were given. In truth, it was submitted, the applicant was seeking to challenge the 
merits of the decision which was of course impermissible injudicial review.
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Arguable grounds
94. I am satisfied that the applicant has raised an arguable case as to whether the Minister 
properly considered and/or properly engaged with the applicant’s article 17 case and in 
particular his article 3 case based on the medical evidence tendered by the applicant. I am 
satisfied that there is a sufficiently arguable case raised as to whether the correct interpretation 
of CK and related EU case law is such as to have required the Minister (notwithstanding her 
unfettered discretion under article 17) to have determined that the applicant should not be 
transferred to Sweden in light of the medical evidence tendered on his behalf. The scope of 
the Court’s review in that regard is likely to be influenced by the answer to the question as to 
whether this judicial review is within article 27, an issue I will return to below.
95.1 also accept that there is an arguable case that the Minister did not engage in a proper 
proportionality consideration for the purposes of article 8(2).
96. In my view, the applicant has also raised an arguable case in relation to the grounds relating 
to failure to have regard to relevant considerations; failing to have regard to the applicant’s 
case; failing to properly engage with his article 8 case; failure to provide adequate reasons 
and irrationality.
97. In truth the resolution of all of the grounds is linked to the fundamental question of the 
appropriate treatment as a matter of law of the applicant’s circumstances as disclosed by the 
medical evidence tendered on his behalf.
Addendum
Parties' submissions
98. The applicant submitted that the addendum to the article 17 decision made clear that the 
Minister had not taken into account the very relevant material of Dr Giller’s second report, 
notwithstanding that this report was in possession of the Minister, having been furnished by 
way of affidavit from the applicant’s solicitor in the first judicial review proceedings on 2nd 
February 2022 and having been specifically referred to in the Minister’s replying affidavits 
in those proceedings.
22
99. The applicant also contended that other arguable grounds of challenge arose from the 
addendum. It was contended that the addendum was not legally valid as it was arguable that 
the Minister was functus officio as regards the applicant’s article 17 application once Ms. 
Bannigan had issued her decision on 16lh February 2022. It was said that the addendum 
represented an impermissible backdoor attempt to remedy the decision. It was further 
contended that the addendum, having been made subsequent to the launch of the second 
judicial review proceedings which were challenging the original article 17 decision was 
vitiated by objective bias and that it was arguable that a fresh decision should have been taken 
by a separate decision maker. It was also said that the addendum was vitiated by a failure to 
give reasons and was so unclear as to be invalid in law.
100. The Minister submitted that Dr. Giller’s second report should have been sent to the 
Minister’s department directly, and not via an exhibit to an affidavit in court proceedings. It 
was accordingly understandable that the decision maker did not see it before the article 17 
decision was made on 16lh February 2022. It was accepted that the reader of the 16th February 
article 17 decision may have assumed that the decision maker had considered Dr. Giller’s 
second report but that it was now clear from the evidence that that is not in fact what 
happened.
101. It was submitted that there was nothing inappropriate in providing an addendum to the 
decision and that, indeed, the very nature of the type of circumstances that might lead to an 
article 17 request might be fluent and evolving (particularly where the related to a person’s 
medical situation) such as to require an earlier decision to be revisited. The decision of Burns 
J in HK v Minister for Justice [2021] IEHC 40 (which is under appeal to the Court of Appeal) 
was relied on as authority for the proposition that there is nothing legally inappropriate about 
issuing an addendum to a decision in an immigration context. Counsel for the applicant in 
reply pointed out that the HK decision concerned an addendum to a s.35 report and not to a 
decision which made that case readily distinguishable.
102. The Minister also submitted that the only appropriate person to consider an addendum 
to the decision was the person who had made the original decision, given that this person was 
the person who was most familiar with the file and who best understood the basis of the 
original decision.
23
Arguable grounds re addendum
103. I am satisfied that the applicant has raised arguable grounds in relation to the lawfulness 
of the addendum and its proper status vis-a-vis the original article 17 decision, given the 
novelty of the issues arising on the facts in relation to the addendum, its timing and the 
maimer in which it is expressed.
Conclusion on leave application to challenge article 17 decision and addendum
104. The substantive hearing will require careful analysis of the reasons advanced in the 
article 17 decision, when viewed in light of the contents of the addendum. I satisfied, in the 
circumstances, that the applicant should be granted leave to seek reliefs D 1(a) and (b) on all 
of the grounds set out at paragraphs E (1) to (10) and (14) to (18) of the further amended 
statement of grounds.
Declaratory reliefs: Application of article 27 to this judicial review challenge to article 17?
Introduction
105. In order to determine whether the applicant has raised a sufficiently arguable case in 
respect of the various declaratory reliefs sought (as set out at paragraph 29 above) including 
those declarations to the effect that he is entitled to automatic suspensive relief and/or 
injunctive relief under article 27 pending the outcome of the judicial review proceedings, it 
is necessary to set out in a little detail the parties’ arguments on these issues. These 
arguments will also be of relevance in the context of the request for an article 267 reference 
to the CJEU.
Applicant’s submissions
106. The applicant submits that the Court of Appeal in BK identified that the interaction 
between an article 17 decision and the effective relief at article 27, particularly with regard 
to the suspensive effect thereunder, was not acte claire, and may require a reference to the 
CJEU in the appropriate case. The applicant submits that not only is his case an arguable
24
one as regards his entitlement to suspensive relief and therefore to remain in the State 
pending the determination of this judicial review, but further contends that his case provides 
the appropriate vehicle for an article 267 reference on these issues.
107. I will come separately to the question of a reference to the CJEU later in this judgment, 
but for present purposes the applicant submits that it is clear that arguable grounds arise in 
relation to the interaction between an article 17 decision and article 27 in light of various 
passages in the CJEU judgement in MA including paragraph 64, 78 and 79.
108. At paragraph 64 of MA the CJEU held that “the discretion conferred on Member States 
by Article 17(1) of the Dublin III Regulation is an integral part of the mechanisms laid down ’ 
by that regulation for determining the Member State responsible for an asylum 
application”. At paragraphs 78 and 79 of MA, the CJEU held:-
“78. However, if a Member State refuses to use the discretionary clause set out in 
Article 17(1) of the Dublin III Regulation, that necessarily means that that Member 
State must adopt a transfer decision. The Member State’s refusal to use that clause 
may, should the case arise, be challenged at the time of an appeal against a transfer 
decision.
79. Consequently, Article 27(1) of the Dublin III Regulation must be interpreted as 
meaning that it does not require a remedy to be made available against the decision 
not to use the option set out in Article 17(1) of that regidation, without prejudice to the 
fact that that decision may be challenged at the time of an appeal against a transfer 
decision." [emphasis added.]
109. The applicant contends that the proper interpretation of these paragraphs is that an 
article 17 refusal is intrinsically bound to the ultimate question of which member state will 
be responsible for determining an applicant’s claim for international protection such there 
must be an effective remedy pursuant to article 27 permitting a challenge to an article 17 
refusal; the outcome of such a challenge may have a real bearing on whether a transfer 
decision is in fact adopted.
25
110. The applicant submits that the CJEU in MA was saying that a separate article 27 remedy 
is not required in respect of a challenge to an article 17 decision because, as a necessary part 
of the transfer decision process, article 27 already encompasses a challenge to the article 17 
decision. Accordingly, he argues, that as article 27(3) applies to a challenge to an article 17 
decision by way of judicial review, such challenge has a suspensive effect such as to entitle 
him to remain in the State pending the outcome of the judicial review challenge. The 
suspensive effect either applies automatically until the outcome of the judicial review, 
pursuant to article 27(l)(a) or applies automatically, pursuant to article 27(1 )(c), at least 
until the Court has had an opportunity to consider suspending the implementation of the 
transfer decision pending the outcome of the judicial review challenge following an 
appropriate application.
111. In contending that the term “transfer decision” in article 27(1) must be taken to 
incorporate an article 17 decision, as an article 17 decision forms an integral part of the 
process by which the responsible member State is determined, the applicant relies on the 
case law of the CJEU which he says has given an expansive interpretation to the scope of 
the article 27 remedy, including Ghezelbash, Megestab and Shiri (the citations for these 
cases are at paragraph 50 above).
112. In Shiri, the CJEU held that article 27 could be invoked in circumstances where there 
had been a failure to transfer the applicant within the 6-month time limit such that, pursuant 
to article 29(2), responsibility for dealing with the applicant’s international protection 
application was transferred to the requesting member state (i.e. the state from which the 
applicant was sought to be transferred back to the requested member state). The applicant 
contended that the CJEU’s decision in Shiri made clear that an expansive approach was 
adopted to article 27; as the CJEU held that decisions relating to alleged non-compliance 
with article 29 time limits were within the compass of the remedies provided under article 
27, it followed that article 27 was not limited to transfer decisions under chapter III of the 
Dublin III Regulation. In circumstances where, in Shiri. procedural and not substantive 
matters were regarded as within article 27, it was submitted that it must follow that a 
substantive decision under article 17 will also be covered by article 27.
113. The applicant argued that it would undermine the efficacy of article 27 to have an 
integral part of the transfer system fall outside of the review mechanisms available within
26
the Dublin III Regulation. This was supported, it was said, by the terms of recital 19 of the 
Regulation which provides:
"In order to guarantee effective protection of the rights of the persons concerned, 
legal safeguards and the right to an effective remedy in respect of decisions regarding 
transfers to the Member State responsible should be established, in accordance, in 
particular, with Article 47 of the Charter of Fundamental Rights of the European 
Union. In order to ensure that international law is respected, an effective remedy 
against such decisions should cover both the examination of the application of this 
Regidation and of the legal and factual situation in the Member State to which the 
applicant is transferred. ” (emphasis added)
114. As regards sequencing of an article 17 application and decision, it was pointed that the 
CJEU at paragraph 78 of MA referred to the “adoption” of a transfer decision subsequent to 
an article 17 decision, thereby connoting that it is only after an article 17 refusal that a 
chapter III transfer decision becomes final and operative.
115. The applicant argued that it was the State’s decision to bifurcate the chapter III and 
article 17 aspects of the Dublin system process which led to the issues now being raised by 
way of complaint on behalf of the State in relation to delays in the system caused by article 
17 applications subsequent to IPAT decisions; that was not a matter which could be laid at 
the applicant’s door.
116. The applicant contended that there was no set definition of “transfer decision” within 
the Dublin III Regulation. The fact that that there was such a definition in the 2018 
Regulations could not be dispositive of the EU law position. The State had chosen a 
bifurcated approach to different aspects of the decisions relevant to transfer, being the 
IPO/IPAT machinery in relation to the chapter III criteria, and the Minister in relation to 
article 17; it was submitted that it could not through such bifurcation escape its article 27 
obligations in respect of both such aspects of the transfer decision process.
117. In relation to the six-month time limit in article 2 (1), the applicant submitted that if he 
was right in respect of his arguments that article 17 decisions were covered by article 27, it 
would follow that the six-month time limit will only begin to run when the suspensive effect
27
of the judicial review against the article 17 decision had terminated. This is so because 
article 29 (1) provides, in its first paragraph, as follows:
"The transfer of the applicant or of another person as referred to in Article 18(1 )(c) 
or (d) from the requesting Member State to the Member State responsible shall be 
carried out in accordance with the national law of the requesting Member State, 
after consultation behveen the Member States concerned, as soon as practically 
possible, and at the latest within six months of acceptance of the request by another 
Member State to take charge or to take back the person concerned or of the final 
decision on an appeal or review where there is a suspensive effect in accordance
with Article 27(3). " (emphasis added)
118. Accordingly, he says that the six-month time limit does not expire on 6th April next but 
rather the time limit runs from the determination of these judicial review proceedings.
119. The Minister offered an undertaking through an official’s affidavit in these proceedings 
“that in the event the Minister decided to assume responsibility for the applicant's 
international protection application in the State following the transfer of the applicant to 
Sweden where the applicant is successful in these proceedings and is further successfid in 
relation to his article 17(1) application review at that stage, the Minister undertakes to take 
all appropriate and reasonable steps to facilitate the return of the applicant to this 
jurisdiction for that purpose. ” The applicant submitted that this undertaking was only 
consistent with an article 17 decision being within the concept of a transfer decision 
amenable to article 27, as the form of transfer back of the applicant to the State pursuant to 
this undertaking was the type of transfer back contemplated by article 29(3) and article 30(2) 
of the Dublin III Regulation i.e. a transfer back relating to the outcome of a challenge to a 
transfer decision.
The Minister’s submissions
120. As a preliminary objection, the Minister contended that the applicant was not entitled 
to invoke arguments in relation to article 27 at all, as article 27 was not directly effective. 
This was so, contended the Minister, because article 27(3) provided the State with three 
disjunctive options and the State had manifestly opted for the first option i.e. article 27(3)(a)
28
as implemented in the 2018 Regulations (i.e. providing for suspensive effect on a transfer 
pending the determination of an appeal to IPAT against the chapter III criteria decision).
121. The Minister relied on the CJEU decision in Del-Zempleni Nektar Leader Nonprofit kft. 
v Viddkfejlesztesi Minister C-24/13 (“Nektar") which stated as follow:
"14. ...if, by virtue of the very nature of regulations and their function in 
the system of sources of European Union law, the provisions thereof 
generally have immediate effect in the national legal systems, without it 
being necessary for the national authorities to adopt application measures; 
some provisions may, however, require for their implementation the 
adoption of application measures by the Member States (see, inter alia, 
Case C-592/11 Ketelci [2012] ECR, paragraph 35 and the case-law cited).
15. In that regard, it follows from settled case-law that the. Member States 
may adopt rules for the application of a regulation if they do not obstruct 
its direct applicability and do not conceal its nature as an act of European 
Union law, and if they specify that a discretion granted to them by that 
regulation is being exercised, provided that they remain within the limits 
laid down therein (Ketelci, paragraph 36 and the case-law cited). ”
122. The Minister contends that the 2018 Regulations provide mles for the application of 
article 27(3) and “do not obstruct its direct applicability” within the meaning of this passage 
from Nektar, such that the applicant cannot now seek to litigate an alleged failure by the 
State to provide that article 27(3) would also apply to a challenge to an article 17 decision.
123. The Minister argued that the applicant had not sought to issue proceedings alleging 
infringement by the State of its EU law obligations under the Dublin III Regulation or 
otherwise making non-transposition arguments. The Minister submits that the State opted 
for the option in article 27(3)(a) and implemented that option in the 2018 Regulations by 
conferring on IPAT the jurisdiction to deal with an appeal against a transfer decision (i.e. a 
Chapter III transfer decision). As has been made clear by the Supreme Court in NVU, IPAT 
has no jurisdiction in respect of an appeal from or a challenge to an article 17 decision.
29
124. Without prejudice to her arguments as to the applicant’s lack of standing to invoke 
article 27, the Minister, for her part, takes a very different reading of MA. The Minister 
submits that the CJEU was making clear in its judgment in MA that an article 17 decision 
was not within the scope of article 27 and that an article 17 decision was essentially a 
freestanding matter which arose independently of the transfer decision under chapter III of 
the Dublin III Regulation. If the CJEU was of the view that article 17 was within the scope 
of article 27, it would have so stated in MA, particularly in light of the questions referred to 
it and considered in that judgment described by the CJEU at paragraph 73 of its judgment 
as “by its fourth question, the referring court asks, in essence, whether article 27(1) of the 
Dublin III regulation must be interpreted as meaning that it requires a remedy to be made 
available against the decision not to use the option provided for art. 17(1) of that 
regulation.'’’
125. The Minister submits that the remedy of judicial review, pursuant to order 84 Rules of 
Superior Courts, is an effective remedy pursuant to article 47 of the Charter. However, 
importantly, the Minister submits that because a judicial review challenge to an article 17 
decision is not within the scope of article 27, it follows that there is no automatic suspensive 
effect, whether pending the determination of the article 17 judicial review under article 
27(3)(a) or pending determination of an injunction application for suspension under article 
27(3)(c). She further submits that the it follows that the six-month time limit in article 29(1) 
begins at the time IPAT has refused an appeal against a transfer decision and not at some 
later point, if an article 17 decision is made later and thereafter challenged by way of judicial 
review.
126. In answer to the question as to what happens, on the Minister’s analysis, in the event 
that an applicant is transferred back to the requesting state but an article 17 decision is 
subsequently overturned and a second article 17 decision is made pursuant to which Ireland 
decides to examine the applicant’s application for international protection (a scenario which 
does not appear to be addressed in terms in article 29, which refers only to where “a person 
has been transferred erroneously or a decision to transfer is overturned on appeal or review 
after the transfer has been carried out"), the Minister says that in keeping with the spirit of 
reciprocity underpinning the Dublin system, the requesting State would return the applicant
30
to Ireland. The undertaking offered in the affidavit filed on her behalf (referred to at 
paragraph 119 above) is in keeping with this approach.
127. The Minister submits that the interpretation of articles 27 and 29, and their alleged 
interaction with article 17, as contended for by the applicant will serve to fundamentally 
undermine the core objective of the Dublin III regime which is to ensure a rapid processing 
of the decision as to which Member State shall be responsible for determining the 
international protection application of any given applicant.
Judgment of Collins J. in BK
128. Collins J. in BK noted (at paragraph 71) that the CJEU’s finding in MA (at paragraph 
79) was clear that “Article 27(1) of the Dublin III Regulation must be interpreted as meaning 
that it does not require a remedy to be made available against the decision not to use the 
option set out in Article 17(1) of that regulation". However, Collins J noted that the CJEU 
had also emphasised that the principle of effective judicial protection applied. Accordingly, 
the decision not to use the Article 17(1) option “may be challenged at the time of an appeal 
against a transfer decision” (MA paragraph 79). Collins J. found that, in setting out that "if 
a member state refuses to use the discretionary clause set out in article 17(1) ... that 
necessarily means that that member state must adopt a transfer decision" the CJEU clearly 
contemplated that an article 17(1) decision would precede a transfer decision.
129. The Minister had argued in BK (as she has argued here) that MA should not be read as 
indicating that an appeal against a transfer decision must therefore encompass any challenge 
to the decision not to use article 17(1), and that MA merely requires that a challenge can be 
made “at the time of' such an appeal but not necessarily part of it. As applicants have a 
separate remedy by way of an Order 84 judicial review, then notwithstanding the CJEU’s 
observation that the objectives of Dublin III “discourages multiple remedies ”, the Minister’s 
position is that the Order 84 procedure is fully compliant with the article 27 of Dublin III 
and article 47 of the Charter.
130. Collins J. stated as follows in relation to the Minister’s argument:
“73......it does no! appear to me that the position is so clear as to be beyond
argument. MA could be read as indicating that in an appeal from/review of a transfer 
decision pursuant to Article 27(1), an applicant must be able to challenge the decision 
on the basis (inter alia) that the competent authority - here, the Minister - did not 
properly consider the exercise of the Article 17(1) discretion in their case. In other 
words, MA could be read as holding that, while Article 27(1) does not provide for a 
separate appeal/review against a decision under Article 17(1), that is precisely 
because any challenge to that decision may be advanced as part of the appeal/review 
of the transfer decision itself (to which the provisions of Article 27(2) and 27(3) would 
apply). That is not possible under the 2018 Regulations. IPAT has no function in 
relation to Article 17(1) and any challenge to the Minister's refusal to exercise her 
discretion under that provision is by way of judicial review to the High Court. 
Requiring an applicant to pursue multiple remedies, with different standards of 
review and different consequences for the implementation of the disputed transfer 
decision, could be said to depart from the fundamental requirement ofEU law that 
the applicant have an effective remedy and effective judicial protection. 1 do not mean 
to suggest that such is the case. Important questions of Member State procedural 
autonomy would also need to be considered in this context. The point is that, in my 
view, the decision in MA does not clearly foreclose such arguments.
74. In these circumstances, before determining the automatic suspension issue and the 
issues that it gives rise to as to the scope of the Article 27 remedy and whether or not 
it encompasses the exercise of the discretion under Article 17(1), it appears to me that 
it would be necessary to make a reference to the CJEU. ”
131. The Minister submits that the observations of Collins J. in BK were obiter and that this 
Court is not obliged to follow them and that I was in fact correct in the analysis I proffered 
in my judgment in RK (which judgment was the subject of the judgment of Collins J. on 
appeal in BK).
Arguable Grounds re declaratory relief sought
132. In light of the arguments advanced by the applicant as set out above, I am satisfied that 
the applicant has raised a sufficiently arguable case in respect of the various declaratory
32
reliefs sought including those declarations to the effect that he is entitled to automatic 
suspensive relief and/or injunctive relief under article 27 pending the outcome of the judicial 
review proceedings.
133. While it is technically correct to say that the comments of Collins J in BK were obiter, 
his comments were carefully considered and, in my view, persuasive as to the arguability of 
the proposition that any challenge to an article 17 decision “may be advanced as part of the 
appeal/review of the transfer decision itself (to which the provisions of article 27(2) and 
27(3) would apply)” (BK, paragraph 73).
134. Accordingly, I propose to grant leave to the applicant to seek the reliefs sought at 
paragraphs 4, 5, 6 and 8 of section D of the further amended statement of grounds, on the 
legal grounds set out at paragraphs 11 to 14 of section E of the further amended statement 
of grounds.
Interlocutory Injunction application
135. As (for the reasons I will come to shortly) the applicant’s application for injunctive 
relief as of right under article 27 is a matter on which I will need guidance from the CJEU, 
I believe that it is appropriate to deal with his application for an interlocutory injunction on 
the basis of the principles set out in Okunade v Minister for Justice [2012] 3 IR 152 
(“Okunade”).
136. For the reasons set out in the preceding sections of this judgment, I am satisfied that 
the applicant has raised an arguable case. The question then becomes one of whether the 
balance of justice favours refusal of the interlocutory injunction i.e. the applicant’s transfer 
to Sweden proceeding notwithstanding that these judicial review proceedings will not have 
been determined before his proposed transfer on 6lh April 2022.
137. In relation to the balance of justice, the applicant contends that it would be 
disproportionate to remove him pending the determination of these proceedings in 
circumstances where he submitted that the very fact of transfer would constitute an 
infringement of his Charter and ECHR rights. The applicant lays particular emphasis on the
33
fact that Dr Giller’s second report expresses the professional opinion that if the applicant is 
returned to Sweden he will be “at serious risk of taking his life”.
138. The applicant also relies on the delay in the application of the Dublin System processes 
to date. Sweden accepted responsibility for the take back request on 19'1' February, 2020. The 
IPO transfer decision issued on 23rd July, 2020. The applicant did not receive a decision from 
IPAT on his appeal against the transfer decision until fourteen months later on 5"' October, 
2021.
139. In relation to the balance of justice, the Minister relies on the CJEU decision in NS v. 
Home Secretary joint cases C-411/10 and C-493/10 at paragraph 80 to the effect that it must 
be assumed that treatment of asylum seekers in all member states complies with the 
requirements of the Charter and the ECHR. The Minister submits that there was simply no 
evidence before the Court that the applicant will be treated in a manner incompatible with his 
fundamental rights if returned to Sweden.
140. The Minister submitted that the default position is that the applicant should be 
transferred to Sweden in circumstances where the IPAT decision affirming the transfer 
decision is not simply prima facia valid but is unchallenged and, in those circumstances, the 
Minister contends that the orderly operation of the uniform scheme contained in the Dublin 
III Regulations should not be undermined. The Minister relied on dicta of Clarke J. (as he 
then was) in Okunade to the effect that significant weight must attach to these factors in 
considering the balance of justice.
141. The applicant submitted that the Minister cannot rely on the “orderly implementation” 
of a valid transfer decision in circumstances where the Court of Appeal made clear in NVU 
that the decision maker must engage with humanitarian considerations where they arise. It is 
submitted that the interference with the applicant’s fundamental rights and the risks inherent 
in transferring him outweigh any public interests in his transfer or the orderly implementation 
of the Dublin III System. It is submitted that damages are not an adequate remedy in the 
circumstances.
142. The Minister also seeks to rely on the applicant’s delay in making his article 17(1) 
request in circumstances where it was known from July 2020, when the Supreme Court
34
delivered its judgment in NVU, that IPAT did not have jurisdiction to deal with an article 17 
(1) request, and only the Minister could deal with such a request. It was submitted that the 
applicant’s delay here was such as to disentitle him to an interlocutory injunction.
143. The Minister invoked a further delay argument, in the context of the interlocutory 
injunction application, arising from the fact that while the applicant had approached SPIRASI 
in June 2021 and would appear to have met Dr. Giller before the oral hearing date of 8th July 
2021 before IPAT, no adjournment of the tribunal hearing was sought to allow a report from 
Dr. Giller to be put before IPAT. This was criticised by the Minister on the basis that such a 
report would clearly have been relevant to the applicant’s case before IPAT in relation to 
article 3 ECHR/article 4 Charter.
Decision on Interlocutory injunction application
144. In my view, the balance of justice on the facts of this case, exceptionally, favours the 
grant of an interlocutory injunction to the applicant pending determination of these 
proceedings. The applicant has tendered medical evidence which suggests he is suffering 
from suicidal ideation and that if returned to Sweden he would be at serious risk of taking 
his life. I have held that there is an arguable case as to whether the applicant’s article 3 
rights were sufficiently engaged by that evidence (and the other medical evidence tendered 
on his behalf) to require, as a matter of law, the Minister not to transfer him.
145. It is also relevant to the balance of justice that part of the applicant’s case is that he is 
entitled as of right to remain in the State pending the determination of this judicial review 
challenge to the article 17 decision, if the relevant provisions of the Dublin III Regulation 
are correctly interpreted as he contends for. If he is proven right in respect of those 
contentions, he will have been returned to Sweden at a serious risk to his life, in breach of 
his legal entitlements under the Regulation.
146. It is also, I believe, relevant to the balance of justice that the applicant has raised issues 
of general importance as to the proper interaction between the provisions of articles 17, 27 
and 29 of the Dublin III Regulation.
35
147, I do not believe any delay here is of such an order as to disentitle the applicant to an 
interlocutory injunction. Indeed, the applicant had been waiting over 12 months for an oral 
hearing before IPAT and it is understandable why the applicant would have wished to proceed 
with his appeal hearing in July 2021 when he did. The very issue of sequencing (i.e. whether 
it is appropriate or indeed necessary to await the outcome of the Chapter III decision and 
appeal before making an article 17 request) is one on which I need guidance from the CJEU 
and I do not believe it would be appropriate to hold any question of delay against the applicant 
in weighing the balance of justice in the circumstances.
148. In all those circumstances, in my view, an interlocutory injunction restraining the taking 
of any steps to remove the applicant from the State pending determination of this judicial 
review is warranted.
149. I should emphasise that the particularly serious nature of the medical evidence before 
the Court is a very important factor on the balance of justice in this case. It may be that my 
view on the balance of justice could be different in a case where the medical evidence is 
not of the order it is in this case.
Reference to CJEU
150. Having granted leave to the applicant to seek the reliefs he seeks by way of judicial 
review, and having granted him an interlocutory injunction preventing his removal from the 
State pending determination of these proceedings, I turn to the question of whether it is 
necessary to refer any questions to the CJEU to enable me deteimine the issues arising in 
these judicial review proceedings.
151. As regards the proposed reference to the CJEU, the Minister emphasised that the Irish 
High Court in MA had already referred to the CJEU question as to whether a decision under 
article 17 was covered by article 27. The fourth question referred by the Irish High Court in 
MA was as follows:
'Does the concept of cm "effective remedy” apply to a first instance decision 'under 
Article 17 of the [Dublin III] Regulation such that an appeal or equivalent remedy 
must he made available against such a decision and/or such that national legislation
36
providing for an appellate procedure against a first instance decision under that 
regulation should be construed as encompassing an appeal against a- decision under 
Article 17? ”
152. The Minister submitted that the CJEU answered that question its judgment in MA and 
that it would not be appropriate to refer substantively the same question to the CJEU; to do 
so would be tantamount to telling the CJEU it had got it wrong in MA.
153. At paragraph 73 of its judgment in MA, the CJEU stated: 11 by its fourth question, the 
referring court asks, in essence, whether article 27 (1) of the Dublin III regulation must be 
interpreted as meaning that it requires a remedy to be made available against the decision 
not to use the option provided for art. 17(1) of that regulation
154. The CJEU clearly contemplated, at paragraph 79 of MA, that the article 17 decision 
could be challenged at the time of an appeal against a transfer decision. In paragraph 78 of 
MA, the CJEU appears to hold that adoption of a transfer decision would necessarily follow 
a refusal to use the discretionary clause set out in article 17(1). The CJEU did not address, 
in terms, the question of whether the suspensive effect provisions of article 27 applied when 
a challenge by way of judicial review was taken to an article 17 decision.
155. While I accept that the CJEU in MA was asked to address questions relating to the 
interaction between article 17 and article 27, the CJEU was not asked in that case to address 
questions relating to suspensive effect. For the reasons identified by Collins J in BK, it seems 
to me that the question of suspensive effect of a judicial review of an article 17 decision is 
not acte claire.
156. I also note that Hogan J in Taj v RAT [2015] IECA 127 (albeit prior to the CJEU’s 
decision in MA) expressed the view that it would be appropriate in a suitable case to refer 
to the CJEU the question of whether judicial review proceedings constituted a “review” 
within the meaning of article 29(1) and the general interaction of articles 27 and 29 of the 
Dublin III Regulation.
157. Fundamentally, clear guidance is required as to whether an article 17 decision must be 
taken prior to the transfer back to the requesting state of an applicant. If so, guidance is 
further required as to whether the subject of an article 17 decision is entitled to remain in
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the State, with the transfer put on hold, until any judicial review challenge to the article 17 
decision has been determined i.e. whether suspensive effect in article 27(3) applies and, if 
so, which form of suspensive effect applies. The question of whether an article 17 
application can or should be made after an appeal against a Chapter III transfer decision has 
been determined also necessarily arises. These are not matters on which the CJEU has 
specifically ruled to date. They are clearly matters of potentially significant importance for 
the operation of the Dublin III system more generally.
158. During the course of the hearing, the applicant suggested the following questions ought 
to be referred:
(i) Must a “transfer decision” made under Regulation (EU) 604/2013 
of the European Parliament and of the Council of 26th June 2013 (the “Dublin III 
Regulation”) be interpreted to include a decision made under Article 17(1) where 
the exercise of discretion under Article 17(1) has been invoked?
(ii) Are requesting Member States precluded from the implementation 
of a transfer decision pending the determination of an applicant’s request for the 
exercise of discretion under Article 17(1) of the Dublin III Regulation?
(iii) Are requesting Member States precluded from the implementation 
of a transfer decision prior to exhaustion of an applicant’s right to an effective 
remedy challenging the refusal of an application made under Article 17(1)?
(iv) Do the provisions of Articles 27(1) and (2) which provide for the 
right to an effective remedy, and the provisions of Article 27(3) which provides for 
suspensive effect, encompass a challenge to a decision made under Article 17(1)?
(v) Must each and all of the suspensive remedies under Article 27 be 
interpreted to operate as a stay on the time limit for the implementation of a transfer 
decision under Article 29(1) of the Dublin III Regulation?
159. In fairness to the Minister, she did not have sufficient time to give instructions on these 
questions before the conclusion Of the hearing. I accordingly propose to discuss further with
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counsel for both parties the appropriate questions to be referred before taking a final decision 
on same.
Conclusion
160. In conclusion, I propose to make an order granting the applicant leave to apply by way 
of judicial review for the relief sought at D(l)(a) and (b); 2; 3, 4, 5, 6, 8, 9 and 10 of the 
further amended statement of grounds on all of the grounds set out section E of the further 
amended statement of grounds.
161. I will grant the applicant an interlocutory injunction restraining the respondent, her 
servants or agents from taking any steps to remove the applicant from the State pending 
determination of these proceedings.
162. I propose to make a reference to the CJEU under article 267 TFEU following further 
discussion with counsel as to the precise questions to be referred.
“31/3
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