Press release, 25 June 2020: Dublin Regulation ambiguity leaves lives in limbo for years

  • Today, 25 June, the Supreme Court will hear a case on Article 17, the ‘discretionary clause’, of the Dublin III regulation.
  • Article 17 of the regulation allows EU member states to consider an application for protection even if it is not its responsibility, for example in compassionate or humanitarian cases.
  • In Ireland, the implementing legislation has been drafted ambiguously resulting in long running litigation about who has the power to use this discretion: the Department of Justice and Equality only or the Department plus its decision making bodies: the International Protection Office and the International Protection Appeals Tribunal.
  • The Court of Appeal found the former in June 2019, but the State appealed the decision.

Nick Henderson, CEO of the Irish Refugee Council said:

 “Many people’s lives have been in limbo while they wait for this issue to be decided. At least 281 people have had their case stayed behind litigation. People have been waiting years for this issue to be resolved. They feel lost and isolated and face huge uncertainty over their future. Their protection application frozen and they cannot work.  Not knowing if they will be sent to another a country they probably have the most minor connection to, if any. We have worked with people driven to deepest despair. Despite this they have tried to build their lives here.”

 “Justice Humphreys in the High Court clearly stated the need for the legislation to be clarified in 2017.  We wrote to the Minister in October 2018 raising this issue and suggesting that new regulations are introduced so this issue is clarified. The response we received was that no comment could be made because it was a matter for the courts. The Court of Appeal found in June 2019 that the IPO and IPAT do have the power to exercise the discretion but the State appealed this decision. Today, several years later, the issue now arrives in the Supreme Court.”  




  • The Dublin III regulation states the criteria to be used by EU member states to determine which state is responsible for considering a protection application.
  • The Supreme Court will hear the State’s appeal in the case of 193/2019 V & ors v The Refugee Appeals & ors. The applicant was successful in the Court of Appeal case which found that the International Protection Office and the International Protection Appeals Tribunal did have the authority to exercise discretion. The State appealed the decision to the Supreme Court. The solicitor representing the applicant is Burns, Kelly, Corrgian
  • See parliamentary question of Catherine Connolly TD, on the number of persons whose case is in the High Court concerning Dublin III and discretion.
  • Humphreys J in the case of MA stated: “The drafting of the regulations is unfortunately in my view very unclear and not readily reconcilable with what is now the stated official position, and the situation is crying out for express amendment. There is an urgency to the need for clarification because on an ongoing basis the Dublin system is simply not functioning in the manner envisaged by EU law given the regulations as currently worded. I would suggest that the Minister give serious consideration to making new regulations (or introducing legislation if that is preferred) specifying expressly who exercises the art. 17 discretion for the purpose of future applications, and providing for an appeal therefrom so that an effective remedy is provided; and so that the Dublin system (which has currently, it seems, ground to a halt in Ireland) can potentially function as required by EU law in relation to future cases.”