Fakih v Minister for Justice

• Jurisdiction: Ireland
• Judge: O'Hanlon J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 1998
• Docket Number: [1992 No. 14 J.R.],14 JR/92
• Court: High Court
• Date: 01 January 1993

FAKIH v. MIN JUSTICE

JUDICIAL REVIEW

BETWEEN

AHMAD HUSSEIN FAKIH, ALI ISMAIL HAMDAN AND MOHAMMED ANIS SLIM

APPLICANTS

AND

THE MINISTER FOR JUSTICE

RESPONDENT

1992 WJSC-HC 1998

14 JR/92

THE HIGH COURT

*Synopsis:

ALIENS

State

Entry - Leave - Asylum - Refusal - Procedure - Minister of State - Representation made to United Nations Commissioner - Agreed procedures - Failure to comply with representation - Legitimate expectation of applicant alien - Compliance with representation required - Aliens Order 1946 (S.R. & O. No. 395), article 5 - Aliens (Amendment) Order, 1975 (S.I. No. 128), article 3 - (1992/14 JR - O'Hanlon J. - 6/3/92) - [1993] 2 I.R.406 1993 ILRM 274

|Fakih v. Minister for Justice|

WORDS AND PHRASES

"Legitimate expectation"

Refugee - Asylum - Claim - Determination - Procedure - Minister of State - Representation made to United Nations Commissioner - Agreed procedures - Permission to enter State refused - Failure to comply with representation - Legitimate expectation of applicant alien - Compliance with representation required - (1992/14 JR - O'Hanlon J. - 6/3/92) - [1993] 2 I.R. 406 - [1993] ILRM 274

|Fakih v. Minister for Justice|

Citations:

ALIENS ORDER SR & O 395 1946 ART 5(2)(j)

ALIENS (AMDT) ORDER 1975 SI 128/1975 ART 3

ALIENS ACT 1935

GOERTZ, STATE V MIN FOR JUSTICE 1948 IR 45

BLACKWELL V ENGLAND 8 E & B 541

O LAIGHLEIS, IN RE 1960 IR 93

NORRIS V AG 1984 IR 36

AG OF HONG KONG V NG YUEN SHIU 1983 2 AC 629

SCHMIDT V SECRETARY OF STATE FOR HOME AFFAIRS 1969 2 CH 149

SALEMI V MACKELLAR (NO 2) 1977 137 CLR 396

R V CRIMINAL INJURIES COMPENSATION BOARD 1967 2 QB 864

R V BOARD OF VISITORS OF HULL PRISON (NO 2) 1979 1 WLR 1041

O'REILLY V MACKMAN 1983 2 AC 237

R V LIVERPOOL CORPORATION EX PARTE LIVERPOOL TAXI FLEET OPERATORS ASSOCIATION 1972 2 QB 299

WEBB V IRELAND 1988 IR 353

AMALGAMATED PROPERTY CO V TEXAS BAND 1982 QB 84

CCSU V MIN FOR CIVIL SERVICE 1984 3 AER 935

DUGGAN V AN TAOISEACH 1989 ILRM 710

WILEY V REVENUE COMMISSIONERS 1989 IR 350

UN CONVENTION ON THE STATUS OF REFUGEES 1951

PROTOCOL ON THE STATUS OF REFUGEES 1967

ALIENS ORDER SR & O 395 1946 ART 5

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

ALIENS ORDER SR & O 395 1946 ART 5(4)

1 Judgment of O'Hanlon J., delivered the 6th day of March, 1992

2 The Applicants in these proceedings for Judicial Review are claiming Orders of Certiorari to quash a decision made in relation to each of the Applicants on the 10th January, 1992 whereby each of them was refused leave to land in the State in reliance on Article 5 (2) (J) of the Aliens Order 1946 (as inserted by Article 3 of the Aliens (Amendment) Order 1975).

3 They also challenge the validity of their detention under Article 5 (4) of the Aliens Order 1946 (as inserted by Article 3 of the Aliens (Amendment) Order 1975), and they claim to be entitled to have their application for refugee status (as defined in accordance with the United Nations Convention on the Status of Refugees, 1951, as amended by the Protocol on the Status of Refugees of 1967) considered and determined by the Respondent.

4 They rely, in particular, on an agreement on procedures agreed between the then Minister for Justice and the United Nations High Commissioner for Refugees (UNHCR) as set out in a letter dated the 13th December 1985 from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr. R. von Arnim, UNHCR Representative in London, which followed upon a meeting which took place between Mr. von Arnim and the then Minister for Justice on the 5th February, 1985.

5 The Respondent in the Notice of Opposition accepts that Ireland is a party to the Convention and Protocol referred to by the Applicants, and also acknowledges the existence of an agreement in the terms of the letter of the 13th December, 1985 already referred to, but in relation to each of these instruments and documents the Respondent says that it is an international agreement which does not form part of the domestic law of the State and cannot be relied upon to establish a cause of action in favour of a private individual in the Courts of the State.

6 With regard to the letter of the 13th December, 1985, it is further pleaded that it does not oblige Ireland to admit any Applicant for asylum to Ireland or to consider any application made. It is also pleaded that the Applicants were, and each of them was, bound to apply for asylum in the first safe country where it was possible for them to do so, and that having failed to do so there is no obligation on Ireland to consider an application for refugee status. Finally, it is asserted that the Applicants have disqualified themselves from obtaining the relief claimed or any part thereof by reason of dishonest and fraudulent conduct on their part in securing entry to the State and otherwise.

THE FACTS

7 The Applicants are of Lebanese origin. They left the Lebanon by air on the 26th December 1991 en route to Dublin. There was a 40-minute stopover in Zurich for refuelling, during which it was permissible for them to leave the plane. There was a further stopover in Copenhagen, lasting 15 hours, which at one stage they said they spent in the airport, at another stage claiming that they had stayed in an airport hotel. They arrived in Manchester at 11 a.m. on the 27th December. The plane was 20 minutes on the ground, and they were again free to disembark if they chose to do so. The flight then continued to Dublin, where they landed and presented for inspection by the immigration official, Lebanese passports and documentation to show that they only sought temporary admission to Ireland as seamen for the purpose of joining their ship, "The Star of Kuwait", which was scheduled to arrive in Dublin port around the same time (or so they claimed).

8 Having been allowed pass through Dublin Airport on the faith of these representations and in reliance on the shipping documents which were produced, they proceeded to the Shelbourne Hotel, and telephoned the brother of the First-named Applicant, who was living in London. He came over to Ireland to meet them, and on the following day, 28th December, all four embarked by sea to travel to the United Kingdom together. They were interviewed by immigration officials in Holyhead and having spent some days in detention in Holyhead, Liverpool and Manchester, they were refused leave to enter and were returned to Ireland by sea on the 9th January, 1992. None of the Applicants had the necessary visa for entry to the United Kingdom, and applications by them for asylum were rejected on the basis that they had come from Ireland, having spent one day in that country, and not directly from the Lebanon.

9 On their return to Ireland, the Applicants no longer contended that they were able to comply with any of the normal conditions of entry and asked instead that they be allowed apply for asylum in Ireland on the basis that they had refugee status and feared for their lives were they to be returned to the Lebanon.

10 The Minister refused to consider any such application and proposed instead to return the Applicants to one of the countries where they had already landed while en route to Ireland (Switzerland, Denmark, - the United Kingdom) in reliance on what is claimed as a rule of international law that a person seeking asylum should apply in the first safe country in which he has an opportunity to do so, having successfully departed from the country where he claims his life was in danger.

11 Each of the Applicants was served with a document signed by Detective Garda Merrigan, Immigration Officer, in the following terms:-

12 This is to inform you that you are being refused leave to land in accordance with the provisions of the Aliens Act 1935and the Aliens Orders 1946 and 1975. You are being refused leave to land because I am satisfied that you intend to travel (whether immediately or not) to Great Britain or Northern Ireland and the officer is satisfied that the alien would not qualify for admission to Great Britain or Northern Ireland if he arrived there from a place other than the State.

13 Prior to their arrival back in Ireland, having been refused entry to the United Kingdom, the Applicants had consulted a firm of English Solicitors, who, in turn, contacted the firm of Solicitors in Ireland who now represent the Applicants, to notify them that the Applicants were due to arrive in Dun Laoghaire on the ferry from Holyhead, and wished to apply for refugee status in Ireland.

14 The Applicants" Irish Solicitors then contacted the Aliens Section of the Department of Justice and requested that the Applicants should not be removed from the Irish jurisdiction pending adjudication of their claim for refugee status in accordance with the agreement on procedures between the Minister for Justice and UNHCR dated the 13th December, 1985.

15 On arrival in Dun Laoghaire, the Applicants were served with the document already referred to, refusing them leave to land in Ireland in accordance with the provisions of the Aliens Act, 1935. Their Solicitor was informed on enquiry from the Department of Justice that the Minister did not accept that he had to determine their claims for refugee status, having regard to the fact that they had been in other "safe countries" on their way to Ireland, and had obtained leave to land in Ireland on foot of false documents.

16 In these circumstances the present proceedings for relief by way of Judicial Review were initiated on behalf of the Applicants, to prevent any steps being taken to remove them from the jurisdiction until their application for refugee status was fully considered and determined in the manner envisaged by the terms of the letter of the 13th December, 1985, written on behalf of the Minister to UNHCR.

17 A further ground was put forward for contesting the procedure being adopted by...