Morris Ali v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 01 March 2012
• Neutral Citation: [2012] IEHC 149
• Court: High Court
• Date: 01 March 2012

Ali v Min for Justice & Ors

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 21(5) OF THE REFUGEE ACT 1996

BETWEEN

MORRIS ALI

APPELLANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

[2012] IEHC 149

[No. 92 MCA/2010]

THE HIGH COURT

IMMIGRATION LAW

Asylum

Revocation of refugee status - Criminal conviction - Statutory appeal - Standard to be applied - Whether jurisdiction of court wider than in judicial review - Whether respondent's decision reasonable - Whether totality of respondent's consideration constituted a fair and accurate summary of facts - Whether respondent in error in considering drugs conviction to be for "crack" cocaine as distinct from cocaine - Whether respondent in error in considering convictions as distinct from single conviction - Whether respondent in error in considering that applicant was in possession of drug dealing paraphernalia when no charge brought - Whether respondent's conclusion that applicant was "serious player in the drug scene" constituted an unsupported conclusion - Gashi v Minister for Justice [2010] IEHC 436 (Unrep, Cooke J, 1/12/2010) followed - Rules of the Superior Courts 1986 (SI 15/1986), O84 & 84C - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 11 - Refugee Act 1996 (No 17), s 21 - Immigration Act 1999 (No 22), s 11 - Illegal Immigrant (Trafficking) Act 2000 (No 29), s 5 - Misuse of Drugs Act 1977 (No 12), ss 6, 15, & 27 - Directive 2004/83/EEC, art 14 - Directive 2005/86/EEC, art 38 - Convention relating to the Status of Refugees 1951, arts 1, 32 & 33 - Appeal allowed (2010/92MCA - O'Keeffe J - 1/3/2012) [2012] IEHC 149

Ali v Minister for Justice, Equality and Law Reform

Facts: The appellant was a citizen of Sierra Leone and had been declared a refugee in the State in 2002. He was later was convicted of drugs possession for sale and supply offences and possession of false documents. The respondent informed the appellant thereafter that his status as a refugee had been withdrawn pursuant to the Refugee Act 1996, as amended, and the European Communities (Eligibility for Protection) Regulations (SI No. 518 of 2006) on the basis that his presence posed a threat to national security or public policy, in respect of a particularly serious crime, referencing his possession of crack cocaine. The appellant sought to withdraw the revocation of a declaration of refugee status and argued that inter alia the respondent had acted in breach of Article 38(1)(b) Directive 2005/85/EC in failing to give the appellant an opportunity to submit reasons as to why his status should not have been withdrawn. It was accepted at the hearing that the references in the Minister”s proposal to revoke the status to ‘crack cocaine’ rather than cocaine’ and ‘convictions’, plural, for drugs offences, was inaccurate. It was argued that the revocation was not fair and reasonable and was unlawful.

Held by O”Keefe J. that the Court would make an order directing the Minister to withdraw the revocation of the declaration. The respondent and his advisers had to consider separate constituents of ‘serious crime’ and ‘particularly serious crime’ on the basis of an informed and correct version of facts. The conclusion that he was a serious player in the drug scene was premised on unsupported conclusions.

REFUGEE ACT 1996 S21(5)

REFUGEE ACT 1996 S21(1)(G)

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

EEC DIR 2004/83 ART 14(4)

EEC DIR 2005/85 ART 38(1)(B)

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

MISUSE OF DRUGS ACT 1984 S6

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

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

CONVENTION RELATING TO THE STATUS OF REFUGEES (GENEVA CONVENTION) ART 33(2)

EEC DIR 2004/83 ART 14(1)

EEC DIR 2004/83 ART 14(4)(A)

EEC DIR 2004/83 ART 14(4)(B)

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

REFUGEE ACT 1996 S21(1)

CONVENTION RELATING TO THE STATUS OF REFUGEES (GENEVA CONVENTION) ART 1

CONVENTION RELATING TO THE STATUS OF REFUGEES (GENEVA CONVENTION) ART 32

CONVENTION RELATING TO THE STATUS OF REFUGEES (GENEVA CONVENTION) ART 33

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

REFUGEE ACT 1996 S21

IMMIGRATION ACT 1999 S11(1)(O)

RSC O.84

RSC O.84C

MURRAY v TRUSTEES & ADMINISTRATORS OF THE IRISH AIRLINES (GENERAL EMPLOYEES) SUPERANNUATION SCHEME 2007 2 ILRM 196 2007/43/9011 2007 IEHC 27

LUKOKI v MIN FOR JUSTICE UNREP DE VALERA 6.3.2008 (EX TEMPORE)

GASHI v MIN FOR JUSTICE UNREP COOKE 1.12.2010 2010/20/4978 2010 IEHC 436

1 Judgment of Mr. Justice O'Keeffe delivered on the 1st day of March, 2012

2 1. This is an appeal pursuant to s. 21(5) of the Refugee Act 1996 ("the Act") directing the respondent to withdraw the revocation of the declaration of refugee status dated 27 ^th May, 2002, given to the appellant as notified by letter of 9 ^th March, 2010.

3 2. A declaration is also sought that s. 21(l)(g) of the Refugee Act 1996, constitutes a measure contrary to the provisions of Directive 2004/83/EC ("the Directive") and is accordingly void. The additional grounds being relied upon by the appellant:-

4 (i) Regulation 11(1) of the European Communities (Eligibility for Protection) Regulations ( S.I. No. 518 of 2006) and Article 14(4) of the Directive apply only to refugee status applications on or after 10 ^th October, 2006; and

5 (ii) The respondent acted in breach of Article 38(l)(b) of Directive 2005/85/EC and in breach of fair procedures in failing to give the appellant the opportunity to submit in a personal interview, reasons as to why his refugee status should not be withdrawn.

Background

6 3. The appellant is a citizen of Sierra Leone having arrived in the State on 4 ^th February, 2001. Having made an application for refugee status within the State following a recommendation by the Refugee Applications Commissioner that the appellant should be declared a refugee, the appellant was informed by letter dated 27 ^th May, 2002, the first named respondent had declared him as a refugee and a declaration dated 27 ^th May, 2002, was enclosed to him.

7 4. On 29 ^th October, 2008, the appellant having pleaded guilty to the offence of possession of drugs for the purpose of the sale or supply contrary to ss. 15 and 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977 and was sentenced to eighteen months imprisonment. On the same date he pleaded guilty to possession of a false instrument, a false south African passport and was sentenced to 12 months imprisonment both sentences to run concurrently.

8 5. By letter dated 4 ^th September, 2009, the respondent informed the appellant that he proposed to revoke the appellant's declaration as a refugee under s. 21(1)(g) of the Act (as amended) and under S.I. No. 518 of 2006, section 11(1)(b). The basis for such proposal was stated to be the convictions above mentioned. The letter sought representations.

9 6. Subsequently, correspondence was exchanged between the respondent's and the appellant's advisers, in particular, by letter dated 6 ^th November, 2009, from the said advisers. The representations were accompanied by a letter from the appellant's fiancée detailing the relationship between them and also a letter from the appellant dated 3 ^rd November, 2009, detailing his regret of what had happened and his subsequent imprisonment. Further correspondence from the appellant's fiancée was sent in the letter of 24 ^th November, 2009, and also a letter from her doctor dated 18 ^th November, 2009, confirming his fiancée was pregnant and as she stated expecting the appellant's child.

10 7. The letter of representation sent by the appellant's solicitor dated 6 ^th November, 2009, made representations in relation to the appellant generally, and submissions in relation to Regulation 11(1)(a) and (b) of S.I. 518 of 2006.

11 8. It also contended that there was no provision in the 1951 Convention relating to the Status of Refugee ("the Refugee Convention") for revocation of refugee status as proposed by the Minister in respect of the appellant. It stated that Article 33(2) of the Refugee Convention, which informed the wording of Article 14.1 of the Council Directive and of Regulation 11(1)(a) and (b) provided for an exception to the obligation of non-refoulement of refugees but did not provide for revocation of refugee status. It was stated that submissions were without prejudice to the appellant's contention that s. 21(1)(g) of the Act and/or Regulation 11(1) and Article 14.4(a) and (b) of the Directive were incompatible with the Refugee Convention.

12 9. In the representations on behalf of the applicant, it was submitted that Regulation 11(1)(b) of S.I. 518 of 2006 required to be addressed, which provided for revocation of refugee status where the refugee "having been convicted in a final judgment of aparticularly serious crime, constitutes a danger to the community of the State", This required a conviction of "a particularly serious crime" constituting "a danger to the community of the State".

13 10. Reference was made to the fact that during his imprisonment, the applicant was transferred from Mountjoy Prison to an open prison (Shelton Abbey). It was submitted that it would not be reasonable or lawful for the Minister to apply a fixed policy whereby all convictions under s. 15 of the Misuse of Drugs Act were deemed "particularly serious crimes". Details of any policy of the Minister in relation to the application of Regulation 11(1)(b) were sought.

14 11. By letter dated 9 ^th March, 2010, the appellant was informed that the respondent in accordance with s. 21(1)(g) of the Refugee Act and s. (...