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

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