Azeem v Minister for Justice and Equality

 
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[2017] IEHC 719

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 509 J.R.]

BETWEEN
RAFIO ABDUL AZEEM
AND
KHAIR DIN AZEEM
AND
KHADIJA AZEEM (AN INFANT SUING BY AND THROUGH HER MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)
AND
NARWAL AZEEM (AN INFANT SUING BY AND THROUGH HER MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)
AND
MUHAMMAS UMAR (AN INFANT SUING BY AND THROUGH HIS MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – Execution of deportation orders – Art. 3 and art. 8 of the European Convention on Human Rights Act 2003 – Grave risk – Availability of medical facility in country of origin – Assessment of information – Significant disparity in medical treatment

Facts: The applicants sought an order of certiorari for quashing the deportation orders made by the respondent in relation to each of the applicants. The first named applicant/mother cited medical ailments of the third named applicant and the fifth named applicant (‘minors’) as the reasons for quashing the deportation orders. The mother submitted that the respondent should have analyzed the specific needs of the said minors and that there were significant disparity between the availability of medical facilities in Ireland and the country of origin for the treatment of the diseases from which the minors suffered.

Mr. Justice Richard Humphreys granted an order of certiorari to the applicants and thus, quashed the deportation orders made against each of the applicants. The Court also awarded costs to the applicants for availing the services of the solicitors and the two counsels. The Court noted that the reasoning adopted by the respondent under art. 3 of the European Convention on Human Rights (‘ECHR’) was appropriate and cogent. The Court however, held that there could be an art. 8 issue even if there was no art. 3 issue. The Court noted that the respondent should have carried out proportionality analysis under art. 8 of ECHR as the respondent did not reject the contention in relation to the disparity in medical treatment between Ireland and the receiving country.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of November, 2017
1

The applicants, a mother and four children, arrived illegally from Pakistan in 2016. The mother has an extensive travel history having resided in recent years in Pakistan, Qatar, Italy, the U.K. and Ireland. The father has returned to Pakistan. The fifth named applicant has Down syndrome. The third named applicant has spina bifida, hydrocephalus and kidney disease, and has one kidney. The applicants made a case to remain based inter alia on the significantly reduced quality of life and lack of medical care in the case of the third named applicant, giving rise to issues under arts. 3 and 8 of the ECHR. Deportation orders were made on the 5th May, 2017. A minor extension of time was required to which the respondents very sensibly did not object. I have heard helpful submissions from Mr. Conor Power S.C. (with Mr. Ian Whelan B.L.) for the applicants and Mr. David Conlan Smyth S.C. (with Ms. Kilda Mooney B.L.) for the respondent.

Alleged defective art. 3 reasoning
2

Mr. Power submits that in the context of consideration of issues under art. 3 of the ECHR, as implemented in Irish law under the European Convention on Human Rights Act 2003, the Minister should have made a finding that there were services available specific to the applicants so that appropriate medical treatment would have been available in Pakistan rather than simply some medical treatment. Reliance is placed on Paposhvili v. Belgium (Application no. 41738/10, European Court of Human Rights, 13 December 2016). In N. v. the United Kingdom (Application no. 26565/05, European Court of Human Rights, 27 May 2008) at para. 43 the Strasbourg court had said that only in ‘ very exceptional cases’ would the expulsion of an applicant to a country where lesser medical care was available breach art. 3. At para. 183 of Paposhvili the court said that such circumstances could include ‘ situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’.

3

At para. 186 the court emphasised the traditional caselaw under art. 3 that it is first of all for the applicant to adduce evidence capable of demonstrating substantial grounds for believing that there is a real risk of treatment contrary to art. 3 ( Saadi v. Italy (Application no. 37201/06, European Court of Human Rights, 2008) para. 129). Mr. Power says that he has done that by putting forward information on the personal circumstances of the applicants; and he submits that such circumstances are extreme, as he puts it, requiring ongoing care. The material submitted is clearly totally insufficient to meet the high art. 3 threshold. The applicant has failed to put forward evidence establishing substantial grounds for believing there is a real risk of treatment contrary to art. 3. Thus for art. 3 purposes there is no onus on the Minister to do more than was done here. In such a context there is no obligation for the Minister to find that healthcare appropriate to any particular applicant is available in the country of origin unless the preliminary threshold under art. 3 is overcome. If it is so overcome the issue is not whether treatment appropriate to the applicant arises but whether the real risk of treatment contrary to art. 3 can be discounted. So the submission under this heading fails.

Alleged lack of reasons
4

Insofar as the deportation decision is ad misericordiam, no detailed reasons are required. Deportation arises only in the context of persons who have no entitlement to be in the State in the first place. In relation to discretionary aspects of the deportation order, the reasons are sufficient in that context. Insofar as the decision relates to legal rights under...

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