H.I.D., B.A. v Refugee Applications Commissioner & others

The European court of Justice recently did not uphold a case for asylum brought on the basis of the following arguments: 

The Ministerial Directive of 2003 which sought to give priority to asylum applications from Nigerian nationals, (later revoked in 2010). They contended  this was  incompatible with Article 23(3) and (4) of Directive 2005/85, which contains an exhaustive list of circumstances in which an accelerated procedure may be used and does not include either prioritising or accelerating the examination of applications made by one group of nationals by reference to their nationality. In addition it was submitted this infringes also the prohibition of discrimination on basis of nationality.

The possibility of lodging an appeal before the Refugee Appeals Tribunal against the ORAC report may not comply with the obligation set out in Article 39 of Directive 2005/85 to guarantee ‘the right to an effective remedy before a court or tribunal’. It was submitted that the Refugee Appeals Tribunal is not ‘a court or tribunal’ within the meaning of Article 267 TFEU.

Basic facts of the case:

In each of the two cases in the main proceedings, an asylum application was filed in Ireland by a Nigerian national who had entered Irish territory in 2008. In the case of Ms D., the ORAC dismissed the asylum application in its report dated 15 August 2008 pursuant to section 13 of the Refugee Act. In the case of Mr A., the ORAC, in its report dated 25 August 2008, issued a negative recommendation in respect of the application of that Nigerian national, which was confirmed on appeal by the Refugee Appeals Tribunal by a decision of 25 November 2008. 

The findings of the case consisted of the following:

It follows from the foregoing that Article 23(3) and (4) of Council Directive 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as not precluding a Member State from examining by way of prioritised or accelerated procedure, in compliance with the basic principles and guarantees set out in Chapter II of that directive, certain categories of asylum applications defined on the basis of the criterion of the nationality or country of origin of the applicant.

It follows that the Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law and rules on the evidence submitted to it, in relation to which it enjoys discretion. It must be concluded that the criterion of independence is satisfied by the Irish system for granting and withdrawing refugee status and that that system must therefore be regarded as respecting the right to an effective remedy. Article 39 of Directive 2005/85 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows an applicant for asylum either to lodge an appeal against the decision of the determining authority before a court or tribunal such as the Refugee Appeals Tribunal (Ireland), and to bring an appeal against the decision of that tribunal before a higher court such as the High Court (Ireland), or to contest the validity of that determining authority’s decision before the High Court, the judgments of which may be the subject of an appeal to the Supreme Court (Ireland).

To access the full judgment: http://www.bailii.org/eu/cases/EUECJ/2013/C17511.html

Brophy Solicitors

06.02.13 

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

Refusal of refugee tribunal to grant refugee status a 'breach of fair procedures'

An article in the Irish Times from Thursday, 19^th July 2012, reports that the High Court quashed an order refusing a Kosovan man refugee status. Mr Justice McDermott ruled that the case should be returned to the Refugee Appeals Tribunal to be reheard.

The man is a member of the minority gypsy Ashkali group, and he claimed in court that he was shot in the leg by Albanians outside his home in Kosovo in a racially motivated attack. The court denied him the ability to present medical records detailing the injury he acquired in the shooting on the grounds that his account of the shooting was implausible. He was not granted refugee status, and he appealed that decision to the high court.

Mr Justice McDermott ruled that this was a breach of fair procedures, and that the Refugee Appeals Tribunal was required to wait until the “expiration of a period allowed for the furnishing of medical reports” in order to refuse the documents.

Brophy Solicitors

24.07.12

http://www.irishtimes.com/newspaper/ireland/2012/0719/1224320380859.html

Successful Judicial Review challenge against RAT on basis of Failure to Consider Tutsi/Rwandan Affiliation, the Risk as a Failed Asylum Seeker and Unsustainable Conclusions made about the South African Immigration System

M.T.T.K (Democratic Republic of Congo) v Refugee Appeals Tribunal & Ors [2012 IEHC 155]

This case concerned an application for judicial review in respect of a decision by the Refugee Appeals Tribunal, affirming a recommendation by ORAC, not to grant the applicant refugee status.

The applicant claims to be a national of the Democratic Republic of Congo. He applied for asylum in February 2006 based on his fear of persecution arising from his race, political opinion and membership of a social group. He alleged that he is of mixed ethnicity and in the DRC he is viewed as Tutsi or as having Rwandan connections. The applicant claimed he was jailed and tortured by the DRC authorities in 2004 for purportedly supporting the Rwandan Government. The applicant escaped to Rwanda but was arrested for having no documents and was detained until January 2006. He then travelled to Ireland where the ORAC refused him refugee status in December 2006 and the RAT rejected his appeal as they did not believe his narrative.

Hogan J granted leave on a number of grounds that centred around three issues:

     (1) Risk of persecution based on ethnic origin or perceived connections to Rwanda.

It was clear to the tribunal member that the applicants alleged ethnicity was a distinct and separate point warranting individual consideration. The tribunal member failed to weigh the merits of the claim and the applicant’s lack of credibility did not justify this failure.  An ambiguity does not suffice as evidence of acceptance of ethnicity or Rwandan affiliation.  However, the court went onto conclude that in any case this matter ought to have been considered by the RAT and their failure to do so meant the decision could not stand.

  

     (2) The risk arising to the applicant by virtue of his position as a failed asylum seeker.

The High Court held that the RAT failed to consider this issue. It was expressed in previous case law that failed asylum seekers are not members of a social group and so particularly cogent evidence is required to quash an RAT decision on this issue. The court considered a number of documents in examining the credibility of the applicant’s evidence. Although some documents appeared one-sided and unsubstantiated, a UNHCR article did state that failed asylum seekers are at risk upon their return to DRC by virtue of their ethnicity. The failure of the RAT to adjudicate on the ethnicity/Rwandan affiliation of the applicant in declining to examine the consequences of being returned to the DRC as a failed asylum seeker was of such a nature to warrant setting aside the decision in this case.

    (3) Benefit the applicant is entitled  to derive from the South African immigration system by virtue of his marriage to a citizen of that country

The High Court agreed wit the tribunal that it is questionable that the applicant never attempted to seek asylum in South Africa, given his marital connections to that country. The court held that the tribunal member went far beyond the question of the applicant’s credibility when he made a number of assumptions about South African immigration law, without supporting these conclusions by reference to the law or policy of South Africa. The applicant may be entitled to such benefit but there is nothing in this decision to support this proposition nor was it put to the applicant. The court therefore cannot presume to rely on this decision and so the conclusion was unreasonably made.

On the basis of these three grounds the High Court granted the applicant an order of certiorari quashing the decision of the RAT, remitted the matter for rehearing and to hear submissions in relation to an injunction restraining the respondent from denying the applicant refugee status and deporting him.     

Brophy Solicitors

30.05.12  

Deportation Order issued against Third Country National on basis of Failure to Establish ‘Family Life’ Within the State

Case Study: K.A (Nigeria) v Refugee Appeals Tribunal [2012] IEHC 109

This case concerned an application for leave to seek judicial review of a decision to issue a deportation order against the applicant. The applicant argued that the Minister erred in law in failing to assess the manner in which the deportation order would affect the applicant’s entitlement to respect for her family life under Article 8 of the European Convention of Human Rights.

The applicant, a Nigerian national, arrived in the state in November 2007 as an unaccompanied minor just before her fifteenth birthday. The applicant then resided with her aunt who was already living in the state with her two children. The applicant claimed she had been living with her grandparents before leaving Nigeria and she came to Ireland for a ‘better life’. Following the failure of her asylum claim and the rejection of her application for subsidiary protection, the Minister considered representations made for leave to remain in the state and then issued a deportation order against the applicant, which is now sought to be challenged.

The essential basis of the applicant’s application for leave to remain was that her aunt and two daughters had come to regard her as a member of their family, which is protected under Article 8 of the Convention. This argument was supplemented by information such as the fact that she was preparing to sit the leaving certificate and she was an active member of her church and youth group. The essential basis the Minister relied on in deciding that her Article 8 family rights would not be infringed was the fact that the applicant was now an adult aged eighteen, had been living in the state for a relatively short period of time during which she was pursuing an asylum application and was living with non-direct relatives.

The issued raised is thus whether the assessment made by the Minister is a rational one having regard to the information available as to the applicant’s circumstances and whether it is compatible with the criteria required to be applied by law in assessing ‘family life’ for the purposes of Article 8.

The High Court considered a number of previous judgments of the European Court of Human Rights on the question of expulsion.  A clear approach emerged that to constitute family life for the purposes of Article 8, mere legal residence over a period is insufficient. There must be evidence that the individual established personal roots in the contracting state through personal relationships, education, employment or other indicators such that the contracting state has become the real centre of the individual’s way of life.

The High Court applied these criteria to the circumstances of the case. It was found that the conclusion reached by the Minister was not wrong in relation to family life.   The Court outlined the applicant’s position.

Her family life for fifteen years was that spent with her grandparents and other relatives in Nigeria. Her aunt had had no involvement in the Applicants life prior to her coming to Ireland. There was doubt as to the family ties between the applicant and her aunt as her aunt had never mentioned the applicant in her application for permission to remain. Finally, although the applicant asserts that her aunt regards her as her daughter, the practical quality of the relationship has not been expanded on or explained in evidence.

In these circumstances, the High Court was satisfied that no stateable case had been made that the Minister erred or reached an unreasonable conclusion in deciding that the these circumstances did not amount to "family life" in the sense of a settled way of life in an established family group, in which there are subsisting emotional ties between the applicant and her aunt and younger cousins. For all of these reasons the application for leave was refused.

Brophy Solicitors
11.05.12

The Issue of Non English Speaking Deponents Swearing Affidavits

A recent article in the Law Society Gazette by David Boughton, a practicing barrister, explores the difficulties encountered by solicitors when swearing affidavits of clients who cannot understand English. He draws attention to a prevalent issue. No provision has been made for any procedure of swearing and filing of affidavits by litigants who speak little or no English in neither rules of court nor legislation as noted by Cooke J of the circumstances of ANM v Refugee Appeals Tribunal. 

The author notes the decision of Cooke J in Saleem v Minister for Justice in deciding on the striking out of an affidavit, which contained an error of communication. The judge recommended, given that the applicant did not speak English at all, the approach of a further procedure to be followed for the swearing of affidavits by such persons. It followed that the affidavit should be sworn in the language the deponent speaks and should then be translated by an appropriately qualified translator with both the original and translated document to be put in evidence as exhibits to an affidavit in English sworn by the translator. This was since adopted in the English courts in 1998.

This "three affidavit" procedure is now in use here in Ireland although some difficulties are obvious - such as the additional cost and expense of translation. Boughton warns though, that a failure to adhere to this procedure may require that proceedings be adjourned  to facilitate the filing of correct affidavits, and with adjournment orders attributing more costs he advises all practitioners to familiarise themselves with the procedures. 

Brophy Solicitors 

05.01.12

HIGH COURT CHALLENGE TO MINISTER'S REFUSAL TO PROCESS AFGHAN REFUGEE’S APPLICATION FOR FAMILY REUNIFICATION

This morning, Mr Justice Peart of the High Court granted our client leave to bring Judicial Review proceedings against the Minister for refusing to process and determine his application for Family Reunification in respect of his wife and young daughter. Our client, who is an Afghan refugee, submitted the application for Family Reunification for his wife and daughter in November 2009, some two years ago. 

When we were first instructed on the case in August 2011, we made strong submissions to the Minister that our client had a statutory entitlement to be reunited with his wife and daughter, pursuant to Section 18 of the Refugee Act 1996 as amended. We also submitted that the delay in determining the application was in breach of our clients rights under Irish and EU law, and highlighted previous guidance from the High Court that a reasonable processing timeframe would be between six and twelve months.

To the distress of our client, the Family Reunification Section responded to confirm that his application had been “on hold” since September 2010 because the Minister was investigating his case for a possible revocation of his refugee status. Our client had never been notified of this proposal to revoke his refugee status, or the postponement of this family reunification application. Furthermore, he had no understanding as to what grounds the Minister was making this proposal.  We wrote numerous letters to the Minster Decisions Unit of the Department seeking a copy of the notification of a proposal to revoke and the grounds upon which this proposal was made, but neither were provided to us in breach of the Minister’s statutory obligation pursuant to Section 21 (3) of the Refugee Act 1996.  Meanwhile, the Family Reunification Section continued to refuse to process and determine the application.

 

Our client was initially very reluctant to resolve this matter by way of High Court proceedings, as he previously had to bring a High Court case to challenge the initial refusal of the Minister to grant him refugee status, and that process had taken approximately three years. We therefore submitted a Freedom of Information Application to the Minister in an attempt to find out what reasons the Minister had for refusing to process his family reunification application and proposing to revoke his refugee status. Unfortunately, nearly all the relevant documents were withheld on the basis that an investigation was being carried out.

Our client is understandably distraught by the on going delay of two years in determining his application for Family Reunification. His wife is now pregnant with their second child and they live in very difficult conditions as exiled refugees in Pakistan. The family had hoped and planned to have their child born in Ireland, in which case he or she would be an Irish citizen by birth.  Our client was therefore left with no option but to bring the matter to the High Court to seek an order compelling the Minister to proceed with his application to be reunited with his family.

Despite the fact that leave to bring Judicial Review proceedings has now been issued, we hope for our client’s sake that this matter can still be resolved in the short term. If the Minister provides an undertaking to consider and determine the family reunification application within the coming weeks, and provides our client with a proper proposal to revoke refugee status clearly stating the grounds upon which the proposal is made, there would be no need for the case to proceed to a substantive hearing before the High Court. In this way, lengthy further delays would be avoided for our clients, as would substantial legal costs.

8.11.11

Brophy Solicitors

FAMILY REUNIFICATION

FAMILY REUNIFICATION - A HAPPY ENDING FOR ONE CLIENT

We  received a number of positive decisions in pending applications for Family Reunification last week. One case is particularly a cause for celebration in our office, because it is a case that has until now caused us much concern.

Our young client had come to Ireland as an unaccompanied minor of seventeen years of age in 2005. Prior to his travels to this State, he had become separated from his family following a rebel attack on his village during which his parents had been killed. He was granted refugee status within less than three months. When he regained contact with his siblings, he submitted an application for family reunification in September 2006. He was of eighteen years of age at the time of the application was submitted.

In September 2007, it was indicated to our client that the family reunification process application would take a further 24 months to process. He received no further correspondences until notified in January 2009 that the application had been refused on the basis that sufficient documentation had not been submitted in support of the application. The refusal letter indicated that there was no appeal avenue open to our client.

Through advices from the Vincentian Refugee Centre, our client chose to seek legal advice from this firm in recent months. He instructed us that he wished to re open the Family Reunification application for his two remaining siblings.

As a first step, we applied for a copy of his file pursuant to the Freedom of Information legislation. When we became aware of the details of our clients first application, we realised that the breaches of fair procedures were of an extraordinary nature. For example, all documentation requested by the Department had been submitted by our client. The full processing time of the application was two years and four months, and it appeared that there was no activity what so ever on the file for a period of one year and four months, between September 2007 and January 2009 when the application was refused.

We believe that our client’s status as a young and unaccompanied applicant for family reunification triggered an onus on the Minister to make every effort to assist him in the application process and determine the application as expeditiously as possible.  We have no doubt that the Minister of Justice failed in his obligations to our client, the consequences of which have been immense for him. In particular, the unexplainable and lengthy delays in the processing of the application, coupled with an ungrounded and unfair negative decision, are cause for great concern. The fact that our client had submitted  the family reunification application  as a separated and unaccompanied young person of 18 years old make these failures in fair procedures all the more concerning.

We were very clear in our approach with the Department. We demanded the case be immediately reopened, fully considered and a new determination issued as soon as all relevant documentation was submitted. The Department agreed to our requests, and last week, approved the application for family reunification in respect of our clients siblings.  He is now in the process of applying for visas for them to join him in the State. He is absolutly delighted, and we wish him and his siblings the best of luck in their new future together in Ireland.

Brophy Solicitors

20.9.11

NEED FOR EFFECTIVE ASYLUM REFORM

In an opinion piece in today’s Irish Times, Mrs Justice Catherine McGuinness highlights the staggering backlog of 1,400 asylum and immigration cases waiting to be heard in the High Court and calls for a robust asylum system that will save time, money and promote fairness.

Mrs Justice Catherine McGuinness highlights the serious shortcomings of the current asylum process. She notes that the Refugee Appeals Tribunal affirms more than 95 per cent negative decisions; it lacks transparency, independence and proper reasoning in its decisions. This gives rise to the high number of aggrieved applicant seeking redress by way of judicial review in the High Court. 

There are delays of approximately 27 months for initial hearing of such cases in the High Court.  The current system is most disastrous for the applicants with genuinely strong cases, such that they should have been granted refugee status at the outset but through errors on the part of the Tribunal Member, their application was wrongfully refused. There are many asylum applicants from countries such as Somalia, Afghanistan and Sudan, who have come from situations of serious harm or torture, and they are now caught in an administrative nightmare of waiting in High Court lists, while living in state funded direct provision accommodation centres.  These applicants will be left waiting for many years. 

In one case taken by this office, our client has gone through the whole High Court Judicial Review process on two occasions, and is now awaiting a third determination by the Refugee Appeals Tribunal. We have no doubt to the genuine nature of his case, but very unfortunately for this man, he has had two very poor quality Tribunal decisions and has been in the system for many years. There are many more asylum seekers like him.

It is well established that such seemingly endless waiting periods can have serious impacts on the mental well being of asylum seekers. However, there is little point in raising such points in the High Court in attempt to have certain vulnerable applicants’ case accelerated with priority. It has been indicated by one of the High Court judges that anything bar a life-threatening illness would fail to achieve priority in the List.

Such a system creates a profound sense of hopelessness, if not depression, amongst the applicants who are waiting years to have their cases heard. The situation in Ireland in respect of these delays is now worse than in Greece, a country which was recently found by the European Court of Human Rights to be so bad that asylum seekers could not obtain a fair hearing and that asylum seekers should not be transferred from other Member States to Greece.

We therefore welcome and support the comments of Mrs Justice Catherine McGuinness. Without political intervention and comprehensive new immigration and asylum legislation, it seems that Ireland, like Greece, may be held up before the European Court of Human Rights as a State acting in systematic breach of the fundamental rights of asylum seeker applicants.

Brophy Solicitors

02.09.11