E.T. (Ethiopia) v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date01 Mar 2019
Neutral Citation[2019] IEHC 144
Docket Number[2018 No. 743 J.R.]

[2019] IEHC 144

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 743 J.R.]

BETWEEN
E.T. (ETHIOPIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND
RESPONDENTS

Deportation order – Certiorari – Art. 3 of the European Convention on Human Rights – Applicant seeking certiorari of deportation order – Whether the deportation decision of the respondent was vitiated because of the failure to apply the law to the facts when considering the possible interference with art. 3 of the European Convention on Human Rights

Facts: The applicant, by letter dated 2nd August, 2018, was notified of the making of a deportation order dated 20th July, 2018. Proceedings seeking certiorari of the deportation order were issued on 13th September, 2018 and the High Court (Humphreys J) granted leave on 24th September, 2018. At the opening of the hearing, the applicant sought an amendment to the statement of grounds which essentially deleted all of the pre-existing grounds and substituted the sole ground that “the deportation decision of the Minister is vitiated because of the failure to apply the law to the facts when considering the possible interference with Art. 3 of the ECHR, resulting in a failure to consider whether the facts amounted to evidence of experiencing treatment in Italy of a kind falling within the prohibition of Art. 3”.

Held by Humphreys J that, while he rejected the procedural objections of the respondents, the Minister for Justice and Equality, the Attorney General and Ireland, regarding the amendment, the extension of time and discretion, he would uphold the respondents’ submissions that the applicant could not succeed because he did not make an art. 3 case to the Minister, because the Minister dealt in substance with any art. 3 points and because in any event the case made did not surmount the prima facie threshold to engage the necessity for doubts to be dispelled by the State under art. 3.

Humphreys J held that time would be extended for the making of the application up to the date on which it was made and that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of March, 2019
1

The applicant is a citizen of Ethiopia, born in 1992. As result of a claim of torture, which was accepted, he was granted international protection in Italy on 28th October, 2014. He received medical treatment in Italy and avers that he believes that that treatment saved his life. Apart from that minor detail however, he contends that his overall experience in Italy was negative. He came to Ireland on 8th July, 2016 on a flight from Munich. At passport control he produced what is known as a 1951 travel document, apparently issued to recognised refugees, that was given to him by the Italian authorities. That document allows visa-free travel, but staying in excess of 90 days requires the permission of the Minister for Justice and Equality under the Immigration Act 2004. The applicant stated that he was only coming to Ireland to visit an alleged uncle. The purported uncle was then contacted by telephone and a person claiming to be such an uncle confirmed that the applicant was visiting him. The applicant stated to the Border Management Unit of the Department that he was intending to return to Milan on 21st July, 2016 via Frankfurt, although he did not do so. In a later interview for the purposes of the Dublin III regulation, he admitted that he had no family members in Ireland, thus impliedly acknowledging that the whole arrangement with an alleged uncle was a sham.

2

He was granted permission at the border until 21st July, 2016, but as noted above did not board the flight home. Since then, mysteriously and coincidentally, he parted company with his travel documents. These details were not mentioned in the applicant's grounding affidavit and nor indeed did the applicant reply to or dispute the State's affidavits in that regard. The applicant then sought asylum in Ireland on 2nd August, 2016. The following day his fingerprints were found to match those of an asylum applicant in Italy.

3

On 9th August, 2016 he requested a temporary residence card. He was interviewed on 17th August, 2016 when it was put to him that he had been fingerprinted in Italy in the context of an asylum application there, at which point he admitted his previous successful application. On 25th August, 2016, his solicitors at the time, the Legal Aid Board, wrote to the Refugee Applications Commissioner acknowledging that the applicant had previously been granted asylum in Italy and was therefore not pursuing an application for asylum in Ireland, but instead ‘ we intend to lodge an application for humanitarian leave to remain’.

4

On 28th September, 2016, the Italian authorities confirmed to the authorities here that the applicant, under the alias of a Mr. E.T.O., was granted international protection in Italy and had been given a residence permit, expiring on 11th December, 2019. On 20th October, 2016, the applicant was advised that he should attend the commissioner's office to complete a withdrawal form, which was subsequently done. The Minister then formally refused international protection on 19th April, 2017. Misunderstanding or ignoring these developments, the Legal Aid Board wrote on 4th May, 2017, stating that the applicant wished to withdraw his application for international protection. On 4th May, 2018, the Department replied to say that the application had already been withdrawn and also proposed to make a deportation order. It is unclear why there was a delay of over one year from refusal of protection to the proposal to deport.

5

On 23rd May, 2018, the applicant's representations seeking leave to remain under s. 3 of the Immigration Act 1999 were submitted. That is an important document in the context of the present proceedings. The representations themselves purport to set out ‘ reasons why the applicant should be granted humanitarian leave to remain in this jurisdiction’. No expressed reliance whatsoever is placed on art. 3 of the ECHR, as applied by the European Convention on Human Rights Act 2003.

6

An account of the applicant's circumstances in Italy was set out on the basis that ‘after receiving his declaration in Italy the applicant lived in difficult circumstances. He could not find work or accommodation. He lived in a bus station and begged for money. He tried to establish himself but was unsuccessful’. Reliance was placed on Italian authorities having threatened to close the borders to refugee ships, although that has no particular relevance to this applicant. There was also reference to a new coalition government, including a ‘ far right anti-immigration party’ and reference was made to an Amnesty report on Italy 2017/18 to the effect that hundreds of people were evicted from a building in the centre of Rome (again, something of limited relevance to this applicant), that inadequate alternative housing was provided and that some families were eventually rehoused temporarily outside Rome. It was further suggested that fear has grown amongst declared refugees that permissions will not be renewed and a claim is made of ‘ sub-human living conditions as well as an anti-immigrant attitude. Further, the applicant was not given access to much needed mental health services which he is now receiving in Ireland’. Further representations were then submitted on 28th May, 2018, 12th and 26th June, 2018 and 19th July, 2018.

7

An examination of file was carried out on 17th July, 2018, which acknowledges and refers to the applicant's submissions regarding the lack of proper treatment in Italy, although most of those submissions are not expressly considered under the heading of art. 3 which is mentioned in the context of...

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