An appeal raising issues about the applicability of EU data protection laws to asylum seekers has been rejected by a 2/1 majority of the Court of Appeal.

The appeal by two Albanian nationals, who came here in 2014, arose from a decision by a Refugee Appeals Tribunal (RAT) that the UK is the EU member state responsible for deciding their applications for asylum and their applications should be transferred there.

Under the regulatory system known as the “Dublin scheme”, the EU member state where either fingerprints are stored or an asylum claim was first made has principal responsibility for determining claims for international protection.

The Irish authorities had sent the applicants’ fingerprints, taken on their arrival here, to the relevant UK authorities.

After the UK stated the fingerprints matched prints held on UK records, albeit for persons with different names, who had been issued with multi-visit visas for the UK valid from October 2014 to late April 2015, the RAT upheld a finding that the UK must decide their applications.

In High Court proceedings, the applicants sought to invoke EU data protection laws for the purpose of challenging the validity of certain requests for information sent from one EU state to another.

Regulation

A core issue was whether information sharing provisions under Article 34 of the Dublin III regulation creates enforceable legal rights the applicants could potentially enforce.

The applicants argued the information requests sent from here to the UK did not comply with requirements of Article 34 with the result personal information about them was sent by the UK to Irish immigration authorities.

After the High Court rejected their challenge, they appealed and also sought to have the appeal court refer key issues concerning applicability of Article 34 for determination by the Court of Justice of the EU.

In a judgment this week, Mr Justice Michael Peart, with whom Mr Justice George Birmingham agreed, dismissed their appeal and refused a referral.

Mr Justice Peart said the applicants did not seek to challenge the orders for their transfer to the UK on grounds the UK is not the member state with responsibility.

Rather, they argued the form requesting information from the UK authorities was not completed here in “strict compliance” with Article 34.

It was of utmost importance criteria for deciding the member state responsible for examining asylum applications are correctly applied and there is an effective remedy for those contending they were not, he said.

An entitlement to effective remedy did not extend to a right “to rummage around in the undergrowth of paper” generated during the asylum process to see “if some T has not been crossed” and “cry foul” when some “infelicity” is discovered with no bearing on their entitlements, he said.

Article 34 confers no right or entitlement on the individual asylum applicant, he said. Any infelicity in the completion of, or lack of information or evidence in the relevant form, did not lead to a right to challenge a transfer decision.

Request for information

The reason for the Irish request for information was sufficiently clear, for the purpose of the regulation, from the forms actually completed in this case, he said. The forms stated the applicants claimed asylum in Ireland in December 2014 and clearly stated this was a request for information under Article 34.

On the data protection issues raised, he said the very fact the fingeprints were lawfully provided by Ireland to the UK meant they were not provided in breach of Article 34. Giving the prints to the UK was part of the information request based on a legitimate interest under the 1988 Data Protection Act of obtaining information relevant to deciding the EU state responsible for deciding the applications. There was no breach of data protection law either under Article 34 or the 1988 Act, he ruled.

Dissenting, Mr Justice Gerard Hogan said the question whether Article 34.4 creates enforceable legal rights which individuals can assert “must, at least, remain an open one”.

He could not see how the appeal court could decide against the applications without first having the matter referred for determination by the CJEU and believed the appeal should have been adjourned pending such a determination.

If Article 34.4 created enforceable rights, there was an issue if that had any practical implications in this case, he added.