NATURALIZATION POST MALLAK – WHAT IS REASONABLE JUSTIFICATION?

After the Supreme Court’s judgement in the case of Mallak v The Minister for Justice and Equality (see blog postdated 7th December 2012),  the question continues to arise when can the Minister legally deny  an applicant for Naturalization the grounds upon which his/her application has been refused. 

On the 13^th December 2012, Minster for Justice, Equity Alan Shatter was asked by was of Parliamentary question what measures the Minister would take to ensure transparency and fairness in light of the Mallak judgement. Further, he was asked whether a review mechanism would be put in place for cases similar to Mallak’s- for persons who had been refused citizenship without being giving a reason. Minister Shatter responded as follows;

“The implications of the judgement of the Supreme Court referred to by the Deputies are being considered in consultation with the Office of the Attorney General and any revised procedures arising will be implemented without delay. The Deputies should note that although the Supreme Court in its judgement quashed the Minister's decision to refuse the application in this particular case, it went on to say that it is not for the Court to prescribe whether the Minister will give notice of his concerns to the applicant or to disclose information on which they may be based or whether the Minister will continue to refuse to disclose reasons for the refusal but to provide justification for so doing. In the particular case it is open to the applicant to lodge a new application.”

If the Minister is going to continue refusing to disclose reasons in justified circumstances, the question of course arises, what constitutes an adequate or reasonable justification for doing so? For example,  would it be reasonable for the Minister to indicate that he is refusing to provide the specific grounds for refusal because this would have adverse consequence for matters of State security?

A recent case of Brophy Solicitors highlights some of the problems. Our client has been refused Naturalization on a number of occasions, each time without reason,  despite the fact that our client  appears to fulfil all of the necessary requirements for naturalization in Section 15(1) of the Nationality and Citizenship Act 1956.  He is currently awaiting the determination of his fourth application. In light of Mallak, we wrote to thee Minister requesting that the grounds for the previous refusals be provided to our client so that they can be addressed prior to the determination of his current application. The Minister’s response was that it is a matter for the Minister to determine what procedures would be applied in the Naturalization process in accordance with the Mallak judgement. Thus, in respect of this case, the Minister refused to provide the reasons for the previous refusals for the reason that the Minister is not in a position to divert resources towards previous applications.

It is of most concern to us that it appears from this case that it is the Minister’s interpretation of the Supreme Court’s reasoning in Malak that he can continue to refuse to provide applicants with the grounds for refusal for reasons involving only administrative difficulties such as “scarce resources”. 

Brophy Solicitors

25.01.13

A NEW PROCEDURE REQUIRED FOR SUBSIDAIRY PROTECTION APPLICATIONS

A significant judgement was delivered today by Mr Justice Hogan in the case of MM v The Minister for Justice which will have far reaching effects on the current subsidiary protection procedure in Ireland.

Mr Justice Hogan held that the Minister for Justice  had failed to afford the applicant an effective hearing at subsidiary protection stage because the Minister had relied completely on the adverse credibility findings made by the Refugee Tribunal regarding the applicant’s claim of harm he may suffer in his country of origin, and because the Minister did not afford the applicant an independent and separate adjudication of these claims.

Mr Justice Hogan’s decision was reached in light of the recent comments of the Court of Justice,  made in response  to the High Court’s reference  to the Court of Justice on the same case.  The Court of Justice  had criticized the current system in Ireland where applicants  must apply for subsidiary protection separately and subsequently to the asylum application, in circumstances where they have no opportunity for a fresh hearing to address the adverse credibility  findings made against them at the asylum stage.  The Court of Justice ‘s reasoning was that if Ireland wished to have a separate application procedure for subsidiary protection, this separate procedure must be fully distinct from the asylum application procedure and the findings made therein. 

Mr Justice Hogan applied the Court of Justice’s reasoning to the Applicant in the MM case to find that the subsidiary protection decision was unlawful and must be quashed, because the Minister had relied entirely on the reasons advanced by the Refugee Appeal Tribunal to reject the credibility  of the applicant’s claim.  No separate or distinct investigation was carried out. The applicant was therefore not afforded an effective hearing at the subsidiary protection stage. 

The consequences of this decision are very significant. Most refusals of subsidiary protection applications are arrived at to a large extent by the deciding officer’s  reliance on adverse credibility findings by the Refugee Appeals Tribunal.   This procedure is now deemed legally flawed and in breach of EU law. The Minster is now clearly on notice that he is required to afford the applicant an opportunity to revisit such matters in the context of an “effective hearing”, which currently does not exist.  

Mr Justice Hogan has proceeded to envisage what  this “effective hearing” would involve  at a minimum level. He indicates that the applicant would  be invited to comment on any adverse credibly findings made by the Refugee Appeals Tribunal, the applicant would be given an opportunity to revisit all matters bearing on the subsidiary protection claim, and the Minister would carry out a completely fresh assessment of the applicants credibility . 

It may be the case that an oral hearing will be required, but will not necessarily be required in every case of subsidiary protection. 

This decision means that the Minister will have to put in place a new or significantly amended procedure for subsidiary protection  applications. Until this happens, each decision may also be deemed to be unlawful.  Mr Justice Hogan acknowledges the far reaching consequences of this decision for the practical administration of the subsidiary protection scheme, and suggests that it is a matter that the Oireachtas might urgently address.  

Brophy Solicitors

24.1.13

Revocation of Refugee Status

It has been reported in an article in today’s Irish Times , that Minister for Justice Alan Shatter, recently confirmed in a parliamentary question that 57 people had their refugee status revoked since he took office in March 2011. The Minister cited the main reason for the revocations being the provision of ‘false or misleading information’.  

Theses figures show a substantial increase in the numbers of revocations of refuge status in the recent years. 

Reference is made in the Irish Times article to a case of Brophy solicitors where a man from Darfur had been given refugee status but when he tried to have his family brought over to Ireland. The Minister wrote to him saying he proposed taking away his refugee status as he was found to have changed information on how he got to Ireland. The client provided an erroneous answer in his asylum interview solely with respect of the specific dates on which he witnessed certain attacks on his village and on his fellow villagers. He also failed to provide information in relation to a short period he spent in another EU Member State prior to coming to Ireland and claiming asylum. He instructed that the error was made on account of a number of factors. When interviewed by the Department of Justice official, he was extremely fearful of making any reference to time spent the EU Member State prior to arriving in Ireland as he feared that he would be returned there, believing he would subsequently be removed directly to Sudan where he would face ill-treatment and torture. Furthermore, on arrival in Ireland, he was confused and still experiencing trauma. It was never the intention of the client to fabricate an asylum claim or elaborate his account in any way but rather to protect himself against potential return to Sudan. The only error he made was only with respect of the dates, the entirety of his remaining account was truthful and correct.

Through very detailed written submissions and explanations over an extended period of time, ultimately, the Minister decided not to revoke our client’s refugee status. The case highlights the caution needed in the revocation procedure for refugees.  It is essential that the refugee has access to good standard of legal representation. However, it is questionable whether such applications fall within the remit of the Refugee Legal Service, and often refugees tend to have not option but to instruct private solicitors.  

The grounds for revocation of refugee status are set out in Section 21 of the Refugee Act 1996 . If one of those grounds exist, the Minister has a discretion to revoke the refugee status.  The act directs that the Minister shall not revoke a declaration on the grounds specified in paragraph (e) or (f) where the Minister is satisfied that the person concerned is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her nationality or for refusing to return to the country of his or her former habitual residence, as the case may be.

When seeking to revoke the revocation status of an individual, it is noted that following the guidance of UNHCR, when considering cancellation of refugee status, it is a requirement that the decision-maker be sensitive to the particular circumstances surrounding the application for asylum.

 ‘UNHCR Note on Cancellation of Refugee Status’, paragraph 23,:

When establishing whether there was an “intention to deceive”, decision-makers must be sensitive to the special circumstances which surround applications for asylum. Traumatic experiences, time lapse or the intensity of past events often make it difficult for an applicant to speak freely and provide a full factual account without inconsistencies or confusion. Minor omissions or inaccuracies, vagueness or incorrect statements, which are insubstantial, should not be used as decisive factors undermining an applicant’s credibility, much less deemed sufficient to establish an “intention to deceive”. … In addition, it should be noted that cancellation does not serve as a “punishment” for incorrect statements.’

‘The applicant must have presented a claim which is coherent and plausible, not contradicting generally known facts, and therefore, on balance, capable of being believed …

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 36:

Cancellation may be justified only if the (new) evidence, had it been before the determining authority at the time, could have supported a negative finding with regard to the applicant’s credibility and/or the well-foundedness of his or her fear of persecution for a Convention reason, or if it would have been sufficient to establish the existence of an exclusion ground provided for under the 1951 Convention.’

Due regard must also be given in respect to whether the revocation could be considered as a proportionate action. Any decision to revoke refugee status which could raise grave human rights concerns and be considered as  being  highly prejudicial to the individual, would lead to a potential breach of their human rights protected under the European Convention on Human Rights (ECHR). This too is reflected in the UNCHR.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph  8:

 ‘Whenever a final administrative decision is reopened with a view to its possible invalidation, the general principles of legal certainty and protection of legitimate expectations, or “acquired rights”, need to be reconciled with requirements stemming from the principle of legality … the principle of proportionality requires that the effects of invalidating a flawed decision for the person concerned be taken into consideration. The guarantees and safeguards of procedural fairness also apply.

‘UNHCR Note on Cancellation of Refugee Status’, paragraph 9:

‘In summary, irrespective of the reasons for reopening a refugee’s case, the invalidation of refugee status ab initio may be lawful only if there are grounds for cancellation, supported by adequate evidence; if the consequences of cancellation for the individual concerned are clearly not disproportionate and of a seriously prejudicial nature; and if the decision to cancel is made in due observance of the guarantees and safeguards of procedural fairness.’

Brophy Solicitors

22.1.13