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
