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1. This is an application for Judicial Review pursuant to leave granted by Ms. Justice Laffoy on the 24th December, 1995. The delay in the case coming to hearing arose because it was decided to await the judgment of the Supreme Court in Anisimova -v- The Minister for Justice . Mr. Justice Murphy delivered the judgment of the Supreme Court in that case on 28th November, 1997. The first and second named Applicants are Georgian nationals and the third named Applicant is an Azerbaijani national. They are seeking asylum in Ireland but the Minister has refused to entertain their applications both because they arrived from a safe third country (France) and already had an application for asylum turned down by the Netherlands, a signatory to the relevant convention and a member of the European Union. Essentially, the Applicants' case is that notwithstanding these particular grounds of refusal (which are not disputed) they have a right to have their preliminary application considered in circumstances that the principles set out in the so called von Arnim letter of the 13th December, 1985 would be applied. This is the well known letter sent by the Department of Justice to Mr. R. von Arnim, Representative of the United Nations High Commissioner for Refugees, setting out the agreed principles by which applications for refugee status and asylum would be dealt with. It has always been accepted, as is clear from the judgment of Mr. Justice Murphy in the Anisimova case cited above, that the acceptance by the Minister of the obligations contained in the von Arnim letter are subject to the qualification that there is an international understanding that a person seeking asylum is under an obligation to seek it in the "first safe country" where he has an opportunity to do so and that the von Arnim procedures must be qualified by the existence of such an understanding and its operation in appropriate cases.

2. This application is grounded on an affidavit by Ms. Nadette Foley, Director of the Irish Refugee Council, sworn on the 12th January, 1996. She said in her affidavit that at approximately 7 p.m. on the 22nd December, 1995 she learnt that the Applicants had attempted to enter the State at Rosslare Port, Co. Wexford and had initially indicated that they were tourists but had subsequently indicated to an Immigration Officer that they were seeking asylum in Ireland. The deponent further swore that the Immigration Officer on duty at Rosslare Harbour, Mr. John O'Carroll, informed her that the Applicants together with the first and second named Applicants' two children had been refused leave to land in the State and that the first and third named Applicants were to be detained in Mountjoy Prison. Further details of what then happened are set out in the affidavit and it is not necessary to elaborate on them here. Mr. O'Carroll informed the Applicant that he had spoken with a Mr. John Lohan, the Duty Officer for the Department of Justice, and that it had been decided that the Applicants' application for asylum in Ireland would not be considered and that they would be deported from the State on Wednesday, 27th December, 1995. The deponent spoke with Mr. Lohan who made it clear to her that the decision of the Department was to remove the Applicants from the State on a sailing to Le Harve in France on the 27th December, 1995. He made it clear that the Minister was not going to consider the Applicants' application for asylum and that he had checked this matter with the relevant Principal Officer, Mr. Brian Ingoldsby. Ms. Foley spoke with the Applicants through a Russian Interpreter and she was told that they had connections with senior officials in Georgia and that because of political changes in that country including civil war, they had been severely harassed and the first named Applicant had been detained for periods of up to fifteen days at a time. The first and second named Applicants claimed that if they were returned to Georgia they could easily be arrested and imprisoned without charge. The third named Applicant claimed that he was a soldier who had deserted from the Azerbaijani Army and who faced the imposition of a sanction ranging from imprisonment to the death penalty if he returned. He further alleged that he was from a well known trouble spot and disputed area as between Azerbaijan and Armenia, namely Nagorno Karabach. He also claimed that he could face a penalty ranging from prison to death.

3. Mr. John Lohan of the Department of Justice swore a replying affidavit. He confirmed that he had received the call from the Rosslare Immigration Office. He said that the Applicants were in possession of some form of documents which purported to be passports issued by an organisation based in Washington D.C., USA which is a non governmental organisation without authority to issue passports but which is in the practice of doing so. He agrees that a decision was made that the Applicants should be refused leave to land in the State in accordance with the provisions of the Aliens Orders on the grounds of not having valid travel documents and no valid Irish visa. Mr. Lohan defends the position taken by the Department on the grounds that the von Arnim letter does not oblige the Minister to consider applications for refugee status in the case of safe third country removals or manifestly ill-founded applications.

4. Having read the decision of the Supreme Court in Anisimova -v- The Minister for Justice , I find myself in agreement with Mr. Durcan, Counsel for the Applicants, that that case is authority for the proposition that the principles in the von Arnim letter must be applied to applications on the preliminary issue of whether a substantive application should be entertained or not but only of course insofar as they could be relevant in that context. I am satisfied that they were not so applied in this case. There were breaches of the principles numbered 4, 6, 9 and 10. These particular principles are formulated as follows:-

5. In the circumstances, I think that the Applicants are entitled to Judicial Review and I will discuss with Counsel the precise form of relief which will enable their application at least to be processed so that the question of whether their substantive application can possibly be considered or not will at least be properly dealt with.