ANK v Minister for Justice, Equality and Law Reform

 
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[2016] IEHC 425

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2015] No. 378 JR

BETWEEN
A. N. K.
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – S. 3 (11) of the Immigration Act, 1999 – Revocation of deportation order – Failed asylum seeker – Fear of persecution – Audi alteram partem

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 25th day of July, 2016
1

The applicant applies for leave to seek judicial review of a decision of 12th June, 2015, made by the respondent refusing to revoke a deportation order made on 8th March, 2011.

2

The applicant has exhibited the examination of file under s. 3(11) of the Immigration Act, 1999, which records the decision making process in respect of the revocation application. That text records facts which form the basis of the following description of the relevant facts.

3

The applicant was born in 1982 and arrived in the State in August, 2008, and sought asylum. His asylum application was rejected at first instance and on appeal. A subsequent application for subsidiary protection was unsuccessful and the Minister made a deportation order on 8th March, 2011. Following further representations the order was affirmed on 3rd October, 2011.

4

Application to re-enter the asylum system was refused ultimately by letter of 19th March, 2013. In that application it was contended that a document entitled ‘Unsafe return refoulement of Congolese asylum seekers’ supported the claim that it was unsafe to return their asylum seekers to the Democratic Republic of Congo.

5

Litigation ensued in relation to the unsuccessful application to re-enter the asylum process. Those proceedings were struck out and the Minister undertook to withdraw the decision of 7th November, 2013, refusing the applicant's request for revocation of his deportation order and facilitating new representations on the revocation application. Further submissions were made in respect of the revocation application on 28th February, 2015, which asserted that returned asylum seekers faced the risk of persecution.

6

It was found that it had not been demonstrated that any new elements or findings had arisen or been presented that would warrant A.N.K.'s readmission to the protection process. Notification issued subsequently that the application for readmission had been refused. The separate request to the Minister under Section 3(11), Immigration Act, 1999, as amended – 28/04/2015 was addressed as follows:-

‘As mentioned above, reliance was placed by Burns Kelly Corrigan on the original Unsafe Return Report by Catherine Ramos, of an organisation called Justice First, published in November, 2011 (cited by them in the 3(11) application of 21/11/2012) and also her follow-up report published in October 2013, written in response to criticism of the first document by the UK Home Office. As summarised up by Burns Kelly Corrigan, these reports concluded that, inter alia:

• Since 2006, the UKBA hypothesis that it is safe to return people is unsound.

• There is no effective monitoring of those refouled and unsuccessful asylum seekers fall outside the mandate of the UNHCR. NGOs and the UN cannot access the airport and are not able to “witness.” arrests.

• When inhuman and degrading treatment has been reported to NGOs, this information has not been acted on nor shared and is being used for “information” only. Returnees who have been arrested and subjected to inhuman and degrading treatment are frightened to approach NGOs, which, they believe, are being monitored by the state security services. This belief is reinforced by the death of Floribert Chebeya, President of Voix des San Voix.

• A policy exists to punish asylum seekers suspected of complaining about ill-treatment and the lack of human rights in the DRC, as they are betraying their country and the President.

• Travel documents identity failed asylum seekers and therefore places them at further risk on return … (being) suspected of having left on a false passport, an imprisonable offence.

• Reporting by returnees of instances of inhuman and degrading treatment to the British Embassy is unrealistic. The Embassy is not easily accessible to people without money or transport. At the end of the road where the Embassy is situated there is a manner military road block. Congolese G4S are on duty at the Embassy's reception windows.

Unsafe Return Refoulement of Congolese Asylum Seekers. A Report compiled by Catherine Ramos (24/11/2011)

http://justicefirst.org.uk/wp-content/uploads/UNSAFE-RETURN-DECEMBER-5TH-2011.pdf

Unsafe Return II – Compiled by Catherine Ramos (03/10/2013)

http://justicefirst.org.uk/wp-content/uploads/UNSAFE-RETURNS-II-October-3-14-50.pdf

As additional support for the above points, Burns Kelly Corrigan cite two documents researched by the Refugee Documentation Centre, a UK Home Office DRC country of origin information report (09/03/2012) and a report entitled “Freedom from Fear”: The treatment of refused Congolese Asylum seekers (04/06/2012).

In its document entitled “Democratic Republic of Congo (DRC) POLICY BULLETIN 2/2014”, referring, in the first instance to the 2011 report and then the 2013 report, the UK Home Office states that “The report was based on investigations undertaken by Ms. Ramos, including visits to Kinshasa, of the experiences of 14 enforced and three voluntary Congolese returnees in the period 2006 to 2011. It alleges that enforced and voluntary returnees to DRC are routinely detained, raped, tortured and generally serious victimised on the grounds that they have, in seeking asylum, betrayed their country”

However, the Home Office goes on to state:

“The “Unsafe Return [1]” report was considered and its recommendations addressed in the DRC Country Policy Bulletin 1/2012 published November 2012 (CPB 1/2012). The bulletin concluded that the report, when considered in the totality of country information, did not demonstrate that FAS per se were at risk of ill treatment on return to the DRC and therefore did not support the report's recommendation that the Home Office needed to revise its policy on returns to the DRC.”

The policy Bulletin notes that “On 8 October 2013 Justice First published a follow up report to ‘Unsafe Return [1]’, entitled: ‘Unsafe Report 2 Report’. On its web site Justice First describes this report as ‘The Unsafe Return 2 ‘updates the original report by Catherine Ramos, which documents the post return experience of 17 Congolese men and women who were forcibly removed to DR Congo from the UK between 2006-2011. Eleven of these were clients of Justice First.’

The report refers to anonymous allegations of mistreatment and consequently it has not been possible to verify the identities of those making the claims, nor to establish any substance to these. This anonymous approach for allegations of mistreatment was criticised in the country guidance case of BK and in other country CG cases.”

The Policy Bulletin states that:

‘The Home Office has considered the Unsafe Return 2 report and concluded that it provides no new evidence. It has the same flaws as the original Unsafe Return report, as found by the High Courts of England and Wales (7.3.1).

The author has no experience or training in the subject areas which she is commenting on and has approached the issue from an emotive basis, with no attention to due reporting techniques. The author has accepted the stories from applicants/returnees, their families and lawyers without validating the evidence to support their allegations. She does not accept the findings in the country guidance case for the DRC of BK (Democratic Republic of Congo) v. Secretary of State for the Home Department [2008] EWCA Civ. 1322 (03 December 2008) that ‘In all but one case those whose asylum claims have been traced – disclose that they were persons whose credibility about past treatment was rejected by adjudicators’, [First Tier judge of the Immigration and Asylum Chamber] (para. 381) and ‘They [failed asylum seekers] have a vested interest in claiming that they were mistreated on return’ (paragraph 383).’

Home Office – Democratic Republic of Congo (DRC) POLICY BULLETIN 2/2014 http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/366714/DRC_PolicyBulletin_14_10_22_final.pdf

In BM and Others (returnees and non-criminals) (CG) [2015] UKUT 293, a case heard by the UK Upper Tribunal (published on 02/06/2015), which involved five DRC nationals appealing against deportation to their country of origin, it was found at para. 76 that:

76. Fundamentally, there is no substantiated allegation of arbitrary arrest or ill treatment of any DRC national who is a failed asylum seeker or a foreign national offender returning to his or her country or origin. We add that there is no suggestion, direct or inferential, that some or all of these agencies are, for whatever reason, incapable of providing concrete evidence of this kind. Moreover, insofar as the evidence of any NGO supports superficially any of the Appellants' cases, we must not overlook that it emanates from organisations who are unlikely to have an entire neutral or unbiased agenda, having regard to the realities of government and politics in the DRC. To this we add that such evidence is undermined and contradicted by more recent evidence...

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