CASE STUDY – SOMALI ASYLUM SEEKERS AND DILEMMA FACING DECISION MAKERS - QFC, AMC v RAT, MJELR, (2012) IEHC 4

Justice Cooke recently granted leave to seek a judicial review in respect of a negative asylum decision on the basis of the decision maker’s failure to assess the possibility of future persecution open to asylum seekers if returned to Somalia.  Asylum was refused to the Applicant as result of credibility findings but Justice Cooke noted the dilemma that faces decision makers in cases where credibility issues arise but the applicant is also from an undeniably dangerous country. 

Justice Cooke held that, “any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so.”

The judge held that the fact that the Applicant had a child with a man who was not her husband could lead to persecution if she was returned to Somalia. The lack of credibility with regard to past persecution did not exclude the possibility of future persecution. He held that “the particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence.”  

You can read the full judgement here.

Irish Times Article - Judge tells ill South African couple they can remain in State

http://www.irishtimes.com/newspaper/ireland/2012/0225/1224312374191.html

AN ELDERLY and ill South African couple whose Irish citizen daughter and her husband had offered to allow them live with them have won a High Court order overturning the minister for justice’s refusal to allow them to live in the State.

In his judgment yesterday, Mr Justice John Cooke overturned the minister’s July 2010 refusal to grant permission to Leon (72) and Margaret (68) Lemiere to live here.

He ruled the minister’s decision did not properly take account of the constitutional family rights of the couple’s daughter, Desiree O’Leary, and her husband, and was not based on a fair and reasonable assessment of the facts of the case. The O’Learys and the Lemieres had brought the judicial review proceedings challenging the refusal to allow them remain in the State on grounds including that the decision breached their family rights.

Ms O’Leary, a UCD lecturer, and her engineer husband, Diarmuid, wanted the elderly couple to stay with them after both became ill and housebound following their discharge from hospital in South Africa in 2008.

The Lemieres lived in Durban where security was a constant and daily problem as, despite having elaborate security precautions, their home was a frequent target for burglars, the court heard.

They previously obtained temporary permissions to stay, with their last permission running up to July 31st, 2010, on condition they did not have recourse to public funds or State benefits and services.

In his judgment yesterday, Mr Justice Cooke said he was satisfied the minister had given inadequate consideration to the need for balance between protecting the applicants’ family interests under article 41 of the Constitution and the State’s interest in maintaining the integrity of immigration laws.

The crucial point was not the Lemiere couple’s right to enter and remain in the State, but the O’Leary couple’s constitutional rights as Irish citizens to look after family members within the State.

The O’Leary couple, as adult Irish citizens, and their dependent elderly parents, constituted a family within the meaning of article 41 of the Constitution and, as such, invoked the protections envisaged by that article, he held.

Those protections included the entitlement of the family to run its own internal life and affairs without interference from the State, unless such interference was justified. The judge added he found the O’Learys were open and candid in their effort to find a way to have the parents stay in Ireland.

He rejected arguments by the minister the challenge should be dismissed on grounds there was no express provision in Irish legislation for an Irish national to apply on behalf of a non-EU national who was their dependant to join them in the State. He further dismissed claims of a lack of good faith by the applicants in their dealings with the department.

The minister acted incorrectly in assessing dependency only in respect of financial grounds when dependency was argued in a much broader context, the judge ruled.#

Irish Times

25.02.12