K (J) (Uganda) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 13 December 2011
• Neutral Citation: [2011] IEHC 473
• Court: High Court
• Date: 13 December 2011

K (J) (Uganda) v Min for Justice

[2011] IEHC 473

BETWEEN

JK (UGANDA)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2011] IEHC 473

[No. 438 J.R./2011]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Judicial review - Leave application - Credibility assessment - Re-admission to asylum process - Failure to advance case regarding homosexuality on previous occasion - Deteriorating conditions for homosexuals in Uganda - Legitimate expectation - Amendment of proceedings - Whether credibility assessment flawed - Whether failure to exhaust administrative asylum process - Whether new elements or findings - Whether jurisdiction to formulate fresh ground of leave - Whether case still "at hearing" - Fakih v Minister for Justice [1993] 2 IR 406; R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768; S(EM) v Minister for Justice, Equality and Law Reform [2004] IEHC 398, (Unrep, HC, Clarke J, 21/12/2004); I(CO) v Minister for Justice [1007] IEHC 180, [2008] 1 IR 208; B(S)(Uganda) v Home Secretary [2010] EWHC 338 (Admin), (Unrep, QBD, Hickinbottom J, 24/2/2010); U(MA) v Minister for Justice, Equality and Law Reform (No 2) [2011] IEHC 95, (Unrep, HC, Hogan J, 9/2/2011) and R(I) v Refugee Appeals Tribunal [2009] IEHC 353, (Unrep, HC, Cooke J, 24/7/2009) considered - Immigration Act 1999 (No 22), s 3 - Refugee Act 1996 (No 17), s 17(7) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20(3) - European Communities (Asylum Procedures) Regulations 2011 (SI 51/2011), art 8 - Leave granted (2011/438JR - Hogan J - 13/12/2011) [2011] IEHC 473

K(J)(Uganda) v Minister for Justice and Equality

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S17(7)

REFUGEE ACT 1996 S17(7A)

EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGS 2011 SI 51/2011 REG 8

FAKIH & ORS v MIN FOR JUSTICE 1993 2 IR 4061993 ILRM 274 1992/7/1998

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE ONIBIYO 1996 QB 7681996 2 WLR 490 1996 2 AER 901

S (EM) v MIN FOR JUSTICE UNREP CLARKE 21.12.2004 2004/45/10370 2004 IEHC 398

REFUGEE ACT 1996 S17(7E)

I (CO) v MIN FOR JUSTICE 2008 1 IR 208 2007/29/5917 2007 IEHC 180

B (S) (UGANDA) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 24.2.2010 2010 EWHC 338 (ADMIN)

REFUGEE ACT 1996 S17(7E)(B)

RSC O.84 r20(3)

U (MA) & ORS v MIN FOR JUSTICE (NO 2) UNREP HOGAN 9.2.2011 2011 IEHC 95

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

1 JUDGMENT of Mr. Justice Hogan delivered on the 13th December, 2011

2 1. The applicant ("Ms. JK") in these judicial review proceedings is a thirty one year old Ugandan national who arrived in the State in 2006 whereupon she sought asylum. She contended that she feared persecution by reason of her alleged involvement with a Ugandan rebel group known as the Lord's Resistance Army.

3 2. That application was rejected on credibility grounds by both the Office of Refugee Applications Commissioner ("ORAC") and the Refugee Appeal Tribunal. Following the rejection of that application, Ms. JK then unsuccessfully applied for leave to remain in the State pursuant to s. 3 of the Immigration Act 1999 ("the 1999 Act") and for subsidiary protection. These applications were in turn rejected and the entire process culminated in the making of a deportation order which was notified to Ms. JK on 21 ^st December 2010.

4 3. On 1 ^st April 2011, the applicant's present solicitors applied to the Minister requesting him to exercise his discretion pursuant to s. 17(7) of the Refugee Act 1996 ("the 1996 Act") so as to permit her to make a fresh application to ORAC. She advanced the claim on two grounds. First, it was said that the applicant had discovered that her husband and child had been murdered in October 2009. Second, she maintained that she had recently formed two homosexual relationships with other women and she feared that she would be persecuted on that account if she were returned to Uganda. That application was refused by the Minister on 16 ^th May 2011 and the present proceedings were commenced on 30 ^th May, 2011. On 5 ^th July, 2011, Birmingham J. granted the applicant an interlocutory injunction restraining her deportation pending the determination of the leave application. It is against this general background that the applicant now seeks leave to apply for judicial review.

The failure to exhaust the administrative asylum process

5 4. Following the promulgation of the European Communities (Asylum Procedures) Regulations 2011 (S.I. No. 51 of 2011)("the 2011 Regulations") which came into force on 1 ^st March, 2011, the Minister introduced new administrative guidelines providing for administrative review of any decision to refuse permission to re-enter the asylum process pursuant to s. 17(7). It is important to stress that the application for re-admission pursuant to s. 17(7) post-dated the entry into force of the 2011 Regulations, so I would reject the applicant's argument that these Regulations were in some way applied with retrospective effect.

6 5. While s. 17(7) was significantly amended by the insertion of a new s. 17(7A) of the 1996 Act by Article 8 of the 2011 Regulations, it is important to stress that the new guideline have no strict legal basis. They are, of course, in themselves none the worse for that and it is probably true that in some instances and under some circumstances the guidelines might give rise to an enforceable legitimate expectation: cf. the judgment of O'Hanlon J. in Fakih v. Minister for Justice[1993] 2 I.R. 406.

7 6. That, however, is not the same thing as saying that an applicant is obliged to avail of the appeal process, particularly in light of the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") which requires that any challenge to the Minister's (original) decision has to be made within a 14 day period. If an applicant were to avail of the appeal process, he or she might find themselves well outside the 14 day time period prescribed by s. 5 of the 2000 Act. It is, of course, true that the courts can - and regularly do - extend the time limit on discretionary grounds. But what lawyer faced with advising a client on this matter would be willing to forsake the certainty of the 14 day time period for the uncertainty of relying on the courts' discretion in relation to an extension of time? That question really answers itself. The guidelines are not in themselves law: they are at most elusive wisps hovering around at the outer extremities of the legal system. As such, guidelines of this sort cannot vary or alter or affect legal rights and obligations.

8 7. In this regard, the Minister cannot have it everyway. If it is desired to encourage applicants to avail of the administrative review regime, then legal certainty requires that the Oireachtas must be prepared to amend the provisions of s. 5(2) in order to provide that time does not run against an applicant during the currency of an administrative appeal. Absent such an amendment, then an applicant such as Ms. NK cannot be faulted for failing to avail of the administrative review procedure, even if that procedure might well have dealt with the substance of her complaints.

The test for re-entry in the asylum process

9 8. The test governing re-entry into the asylum process is now governed by s. 17(7) as amended by the 2011 Regulations. We can shortly consider the terms of these provisions, but up to this point, the test has been that applied by Sir Thomas Bingham M.R. in R. v. Secretary of State for the Home Department, ex p. Onibiyo[1996] Q.B. 768, 783-784:-

"The acid test must always be whether comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim."

10 9. This was the test which was endorsed by Clarke J. in EMS v. Minister for Justice, Equality and Law Reform[2004] IEHC 398. The statutory test now contained in s. 17(7E) is effectively identical, since it requires the Minister to consent to the re-admission of an applicant to the asylum process in circumstances where that applicant has already been declared to be ineligible for subsidiary protection where he is satisfied that:-

11 a "(a).....new elements or findings have arisen or have been presented by the person concerned which makes it significantly more likely that the person will qualify for protection in the State, and

12 (b) the person was, through no fault of the person, incapable of presenting those elements or findings for the purposes of his or her previous application for a declaration (including, as the case may be, any appeal under section 16) or, as the case may be, for the purposes of his or her application for subsidiary protection under Regulation 4 of the Regulations of 2006."

13 10. Proceeding from this basis, therefore, the first question is whether there are any new "elements or findings" within the meaning of this provision. There...