E.S.E. v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 10 May 2017 |
| Neutral Citation | [2017] IEHC 380 |
| Court | High Court |
| Docket Number | [2015 No. 137 J.R.] |
| Date | 10 May 2017 |
[2017] IEHC 380
THE HIGH COURT
Faherty J.
[2015 No. 137 J.R.]
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT (2000) (AS AMENDED)
Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Deportation order – Substantial grounds – Risk of being subjected to inhuman treatment – Responsibility of the contracting state – Art. 3 of the European Convention on Human Rights
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent who refused to revoke a deportation order made in respect of the applicant. The respondent contended that the applicant had been untruthful from the inception of the asylum process about his nationality and thus, by reason of lack of candour, the applicant was not entitled for any relief. The applicant contended that he had accepted his lack of candour and it should not be a bar to relief as substantial grounds established that a real risk to the applicant's life or freedom was inevitable.
Ms. Justice Faherty granted an order of certiorari in favour of the applicant. The Court held that the respondent did not properly address the applicant's substantial grounds argument. The Court relied on the decision of EctHR in Chahal v United Kingdom (1996) 23 E.H.R.R. 413, wherein it was held that: ‘The activities of an individual cannot be a material consideration in circumstances whenever substantial grounds were established which showed a real risk of individual being subjected to treatment contrary to Article 3 and the responsibility lies on the contracting state’. The Court held that the respondent did not assess the circumstances wherein the applicant could face degrading treatment in Kenya as he belonged to Somalian ethnicity and was travelling on a duplicate passport.
This is an application for judicial review by way of an order of certiorari seeking to quash the decision of the respondent dated 23rd February, 2015, refusing to revoke a deportation order made in respect of the applicant. Leave was obtained by Order of MacEochaidh J. on 16th March, 2015.
The applicant arrived in the State on 31st October, 2008, stating his country of origin to be Somalia and that he had a mother, sister and two brothers whose whereabouts were unknown. He gave his date of birth as 19th October, 1991. An age assessment interview was carried out by the Office of the Refugee Applications Commissioner (ORAC) on 5th November, 2008 and the applicant was deemed to be an adult. He made his application for refugee status on 31st October, 2008. A Eurodac search was subsequently carried out and a positive ‘hit’ was made with the U.K. authorities. On 7th September, 2009, the U.K. Border Agency advised the respondent's department that the applicant had obtained a student visa to travel to the U.K. from 23rd September, 2008, to 31st October, 2009, under the name the applicant gives in the present proceedings. In his U.K. visa application, the applicant's nationality was listed as Kenyan and the issuing post was given as Nairobi. The applicant's asylum application in this State was made under a different name and date of birth to that which appeared on his UK visa application.
The applicant's s. 11 interview took place on 15th October, 2009. The basis of his claim for refugee status was that he was from the Reer Hamar tribe in Somalia. He claimed to be at risk of being killed or injured by dominant clans and by Al Shabaab. He claimed that his father was shot and killed by Ethiopian soldiers and that he himself was forced to work for them for some three months following which he escaped. On his return home after his escape, his family were no longer there so he went to his uncle who arranged for his travel to this State.
By the date of the s.11 interview, the Commissioner had the benefit of a Sprakab linguistic analysis report following a language analysis interview with the applicant. The report concluded that the applicant had some knowledge of Afgoye, which may have been due to his having visited the area for some time. The report found that the applicant did not speak the Reer Hamar dialect and that he spoke Somali to the level of a mother tongue speaker and spoke a variety of Somali with certainty found in southern Somalia.
On 11th November, 2009, it was recommended on behalf of the Commissioner that the applicant should not be declared a refugee and the applicant was duly informed on 16th November, 2009. The applicant appealed the recommendation to the Refugee Appeals Tribunal who upheld the recommendation of the Commissioner. On 8th March, 2008, the applicant was advised that it was proposed that a deportation order would be made in respect of him. On foot of the options given to the applicant, on 30th March, 2010, he applied for a subsidiary protection and leave to remain in this State. The representations were based on the fact that the applicant was a Somali national and accordingly, should not be returned to Somalia.
On 27th April, 2010, the Repatriation Unit of the respondent's department wrote to the applicant and informed him that his fingerprints matched the visa application which had been submitted in the U.K. He was also informed that as he was or had previously been in possession of a Kenyan passport and had provided no documentary evidence to prove that he was a Somali national, the respondent intended to process his application on the basis that he was Kenyan.
Representations were lodged on the applicant's behalf by the Refugee Legal Service (RLS) on 18th May, 2010 and it was submitted, based in part on the Sprakab report, that the applicant should be treated as a Somali national. On 12th August, 2010, the applicant was advised that his application for subsidiary protection was refused. His application for leave to remain in the State was also refused and a Deportation Order was made in respect of him on 1st September, 2010, which was communicated to him on 8th September, 2010.
It is not disputed that thereafter the applicant evaded deportation.
On 25th February, 2011, a take-back request was received from the Swiss authorities as the applicant had applied for asylum in Switzerland on 13th December, 2010, under yet a different name and a different date of birth. The applicant denied to the Swiss authorities that he had been previously in Ireland and stated that he had come to Switzerland from Somalia.
On 10th March, 2011, the respondent agreed to the take back request and the applicant was returned to Ireland on 12th May, 2011.
On 1st July, 2011, Daly Lynch Crowe and Morris solicitors wrote to the respondent on the applicant's behalf and sought revocation of the Deportation Order pursuant to s. 3 (11) of the Immigration Act 1999 citing the decision of the European Court of Human Rights (EctHR) in the case of Sufi and Elmi v. United Kingdom (2012) 54 E.H.R.R. 9 on the basis that the level of violence in Mogadishu was of such intensity that there was a real risk to the applicant of treatment prohibited by Art. 3 of the European Convention on Human Rights (ECHR) and that a returnee with no experience of life in Mogadishu would be at real risk of being subjected to treatment proscribed by Art. 3. On 7th June, 2012, the said solicitors informed the respondent that they were no longer instructed to act on the applicant's behalf.
Thereafter, the Irish Refugee Council Independent Law Centre (IRC) took up the applicant's cause. On 14th June, 2012, they advised, inter alia, that to return the applicant to a third country where he was at risk of refoulement would breach the State's international obligations, including the ECHR. By email of 6th November, 2012, the IRC requested an expert opinion from Dr. Joseph Mullen, A UK academic and expert on Somalia, on the basis of the following instructions:
(a) The consistency and credibility of [the applicant's] account of his claim to be from southern Somalia originating from Afgoye, the issue of dialect and the Sprakab report, and germane issues arising including entitlement to Somali citizenship;
(b) The consistency and credibility of [the applicant's] account of growing up without Kenyan citizenship and subsequently attaining citizenship by bribery; including a National Identity Card and a Kenyan passport;
(c) Whether [the applicant] is returnable to Kenya and is at risk of persecution or serious harm if returned there and/or at any risk of onward refoulement to Somalia from Kenya and;
(d) Whether the applicant would face persecution or human rights abuses or benefit sufficiency of protection in the event of forcible repatriation to Somalia from Kenya.
For the purposes of his report, Dr. Mullen had a ‘personal statement’ from the applicant. Therein the applicant advised, inter alia:
• That he lived in Afgoye until he was eight years old;
• That in 1995 he and his family moved to Kenya because of permanent problems in Somalia and that they largely lived in Nairobi;
• That he and his family never lived in a refugee camp in Kenya;
• That his father had several occupations;
• That he obtained a scholarship after primary school and attended secondary school in Nairobi between 2003 and 2006;
• That thereafter he worked in his father's business;
• That his father's tribe was Dir tribe, as was the applicant;
• That on a date in 2007 and in mid 2008 respectively, the applicant was subjected to a dehumanizing treatment and a beating by the Kenyan police;
• That sometime in 2007, his parents introduced him to a human trafficker who assisted him in obtaining a Kenyan national identity card;
• That in 2008, he was issued with Kenyan passport at the age...
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