B. M. (Eritrea) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 16 July 2013
• Neutral Citation: [2013] IEHC 324
• Court: High Court
• Date: 16 July 2013

[2013] IEHC 324

THE HIGH COURT

[No. 1040 J.R./2011]

M (B) (Eritrea) v Min For Justice

JUDICIAL REVIEW

BETWEEN

B. M. (ERITREA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

IMMIGRATION ACT 1999 S3(11)

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S3(1)

REFUGEE ACT 1996 S21(1)(G)

REFUGEE ACT 1996 S21(1)(H)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 11(1)(B)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 11(2)(B)

REFUGEE ACT 1996 S21(5)

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 4

CHAHAL v UK 1996 23 EHRR 413

AHMED v AUSTRIA 1996 24 EHRR 278

SAID v NETHERLANDS 2006 43 EHRR 14

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

SAADI v ITALY 2009 49 EHRR 30

MIN FOR JUSTICE v RETTINGER 2010 3 IR 783

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(C)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)(I)

EUROPEAN ARREST WARRANT ACT 2003 S37(1)(A)(II)

IMMIGRATION ACT 1999 S3

EFE & ORS v MIN FOR JUSTICE & ORS 2011 2 IR 798

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

DADA & ORS v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

A (C R) v MIN FOR JUSTICE 2007 3 IR 603

MAMYKO v MIN FOR JUSTICE UNREP PEART 6.11.2003 2003/33/8069

SMITH v MIN FOR JUSTICE & ORS UNREP CLARKE 1.2.2013 2013 IESC 4

REFUGEE ACT 1996 S19

V (F) v REFUGEE APPEALS TRIBUNAL UNREP IRVINE 28.5.2009 2009/56/14311 2009 IEHC 268

K (MTT)[DRC] v REFUGEE APPEALS TRIBUNAL UNREP CROSS 20.4.2012 2012/2/ 5658 2012 IEHC 155

O (M)(ILLEGAL EXIT - RISK ON RETURN) ERITREA G (C) 2011 UKUT 00190 IAC

A (M)(SOMALIA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2010 UKSC 49

R v LUCAS 1991 QB 720

A (M A M) v MIN FOR JUSTICE 2011 2 IR 721

Application for judicial review - Certiorari - Immigration - Refugee status - Fear of persecution - Deportation order - Criminal offences - Rape - Risk of torture, inhuman or degrading treatment

Facts: The applicant sought judicial review via certiorari to quash the decision of the respondent on 27/9/2012 refusing to revoke a deportation order. The applicant, a national of Eritrea of Tigrayan ethnicity, came to Ireland, successfully applying for refugee status in 2005. In 2007, the applicant was convicted of rape and sentenced to 7 years of imprisonment. In 2009, the respondent revoked the applicant”s refugee status, and in 2011, the respondent issued a deportation notice to the applicant.

The applicant claimed that it would not be possible to return to Eritrea and applied for revocation of the deportation order. The applicant stated that he would be ‘at risk of torture, inhuman or degrading treatment, or punishment or death if returned to Eritrea’. He claimed that this risk was particularly applicable to those who were or were perceived to be ‘draft dodging’, failed asylum seekers; and those who were or were perceived to have illegally left Eritrea.

The applicant”s statement of grounds claimed that the respondent”s refusal to revoke the deportation order was based on the irrational findings that: ‘the applicant could conceal from the Eritrean authorities that he was a failed asylum seeker’; ‘the applicant had failed to provide a link between his individual/personal circumstances and the country of origin information submitted’; and that the applicant did not fear serious harm. It was also contended that the respondent failed to properly assess the applicant”s risk as a ‘person liable for military service’; had failed to ‘apply the correct legal test in determining whether it would be lawful to deport the applicant to Eritrea’; and failed to ‘exercise the due rigour’ required where the risk of torture exists as exemplified in the failure to give proper weight to the information regarding his country of origin.

The court held that the respondent”s finding that the applicant could conceal his history from the Eritrean authorities was both ‘unrealistic and unreasonable’. Also, the court was not satisfied that the respondent”s ‘assessment on credibility was carried out correctly. The court held that there was sufficient information to link the applicant”s personal situation to the three aforementioned grounds of risk. The court also held that ‘special circumstances’ existed in this case preventing him from making submissions, such as his incarceration and lack of legal guidance. Finally, the court held that the respondent did fail to apply the correct legal principles in assessing the risk of deportation to the applicant; and also failed to properly weigh the relevance of the applicant”s lack of credibility against the evidence demonstrating his actual risk. As a result, the court held that the respondent”s refusal to revoke the deportation order ‘was in all the circumstances fundamentally flawed’.

The court therefore granted the certiorari order quashing the decision of the respondent.

1 JUDGMENT of Mr. Justice McDermott delivered on the 16th day of July, 2013

2 1. This is an application for judicial review by way of certiorari seeking to quash the decision of the respondent dated 27 ^th September, 2012, refusing to revoke a deportation order made in respect of the applicant on 8 ^th July, 2011. An application had been made at an earlier stage seeking leave to apply for judicial review by way of certiorari and a declaration in respect of that order which had been adjourned on the basis that the applicant would make further application to the respondent seeking its revocation under s. 3(11) of the Immigration Act 1999, the refusal of which is now the subject of this application.

3 2. The case is somewhat unusual in that the applicant, an Eritrean national, came to Ireland on 10 ^th December, 2004, and applied for refugee status which the Office of the Refugee Applications Commissioner recommended be granted on 24 ^th August, 2005. The respondent, as he was obliged to do, pursuant to the provisions of s. 17 of the Refugee Act 1996, granted refugee status. Subsequently, on 18 ^th December, 2007, the applicant was sentenced to seven years imprisonment for the offence of rape. By letter dated 26 ^th November, 2009, the respondent issued a proposal to revoke that status and did so by letter dated 7 ^th May, 2010.

4 3. By letter dated 25 ^th January, 2011, the respondent issued a proposal to deport the applicant. The applicant contacted the Refugee Legal Service, but was refused assistance. Following an appeal, legal assistance was granted on 19 ^th May, 2011, and on 29 ^th June, a solicitor visited the applicant in prison. In the interim, the applicant wrote to the respondent by letter dated 6 ^th February, 2011, stating that it was impossible for him to go back to Eritrea by reason of the conditions prevailing there.

5 4. A deportation order was made against the applicant on 22 ^nd June, 2011, before he could receive legal advice. Notification of this order was furnished to the applicant by letter dated 8 ^th July. Initially, an application seeking leave to apply for judicial review of this order was filed in the High Court on 26 ^th October, 2011. This application was listed for hearing on 10 ^th July, 2012, and adjourned by consent to enable the applicant to make an application for the revocation of the order under s. 3(11). An undertaking was given at that time by the respondent not to deport the applicant whilst his application for revocation was being determined,

6 5. The application for revocation was made by letter dated 20 ^th July, 2012. It was supported by country of origin information, much of which post-dated the making of the deportation order. It was said to support the contention that the applicant would be at risk of torture, inhuman or degrading treatment, or punishment or death if returned to Eritrea. In particular, it focused on the threat posed to those returnees who were evading military service or perceived by the authorities as doing so, failed asylum seekers and those persons who had illegally left Eritrea or were perceived by the authorities as such. The applicant claimed to be a person at risk under each of these categories. A decision issued refusing the application on 27 ^th September. Thereafter, the applicant filed a motion to amend the original proceedings in order to challenge this refusal. This raised important issues concerning the legal principles to be applied when considering whether to revoke a deportation order made against a person who claims that he will be at risk of a breach of Article 3 of the European Convention on Human Rights if expelled, the nature of the s. 3(11) application, and the consideration of new country of origin information when the applicant lacks credibility on an important part of Ms original claim. On 22 ^nd November, the court permitted the proposed amendment and, by consent, leave was granted to the applicant to bring this application seeking an order of certiorari quashing the contested decision on grounds 5 to 12 of the amended statement of grounds as follows:-

7 2 "(5) The decision of the respondent to refuse to revoke the deportation order in respect of the applicant was based on an irrational finding that the applicant could conceal from the Eritrean authorities that he was a failed asylum seeker and/or was unlawful in failing to recognise the risk (as supported by...