T.F. v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Mark Heslin
Judgment Date16 June 2022
Neutral Citation[2022] IEHC 486
Docket NumberRECORD NO: 2021/563 JR
Between
T.F
Applicant
and
Minister for Justice and Equality
Respondent

[2022] IEHC 486

RECORD NO: 2021/563 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Mark Heslin delivered electronically on the 16 th day of June, 2022

Introduction
1

. In these proceedings the Applicant challenges the fairness and legality of the decision-making process, found in s.52 of the International Protection Act 2015 (“the 2015 Act”), which led to the Respondent's decision of 18 May 2021 to revoke the Applicant's refugee status. The challenge is brought on a number of bases. These include: inadequacy of the opportunity to make substantive submissions in advance of the decision; abuse of process; that irrelevant and unlawful considerations featured in and motivated the decision; breach of the memo iudex in causa sua principle; inordinate and inexcusable delay; deficiency in terms of reasons; and that the 2015 Act, in particular s.52 thereof, is unconstitutional.

S.52 of the 2015 Act
2

. Given its significance for the present proceedings, it is useful to set out, verbatim, s.52 of the 2015 Act, which, under the heading of “Revocation of refugee declaration or subsidiary protection declaration” provides, as follows:

52. (1) The Minister shall, in accordance with this section, revoke a refugee declaration given to a person if satisfied that—

  • (a) the person should have been or is excluded from being a refugee under section 10,

  • (b) the person has, in accordance with section 9, ceased to be a refugee, or

  • (c) misrepresentation or omission of facts, whether or not including the use of false documents, by the person was decisive in the decision to give the person a refugee declaration.

(2) The Minister may, in accordance with this section, revoke a refugee declaration given to a person if satisfied that—

  • (a) there are reasonable grounds for regarding him or her as a danger to the security of the State, or

  • (b) the person, having been by a final judgement convicted, whether in the State or not, of a particularly serious crime, constitutes a danger to the community of the State.

(3) The Minister shall, in accordance with this section, revoke a subsidiary protection declaration given to a person if satisfied that—

  • (a) the person should have been or is excluded from being eligible for subsidiary protection under section 12,

  • (b) the person has, in accordance with section 11, ceased to be eligible for subsidiary protection, or

  • (c) misrepresentation or omission of facts, whether or not including the use of false documents, by the person was decisive in the decision to give the person a subsidiary protection declaration.

(4) Where the Minister proposes, under subsection (1), ( 2) or (3), to revoke a declaration, he or she shall send a notice in writing of his or her proposal and of the reasons for it to the person concerned, which notice shall include a statement of the person's entitlement under subsection (6) to make representations in writing to the Minister in relation to the proposal.

(5) Where the Minister sends a notice under subsection (4) to a person, he or she shall at the same time send a copy thereof to the person's legal representative (if known) and to the High Commissioner.

(6) A person who has been sent a notice of a proposal under subsection (4) may, within 15 working days of the sending of the notice, make representations in writing to the Minister in relation to the proposal

(7) The Minister shall—

  • (a) before deciding to revoke a declaration under this section, take into consideration any representations made to him or her in accordance with subsection (6), and

  • (b) where he or she decides to revoke the declaration under this section, send a notice in writing of his or her decision and of the reasons for it to the person concerned, which notice shall include a statement of the person's entitlement under subsection (8) to appeal.

(8) A person to whom a notice under subsection (7)(b) is sent may, within 10 working days from the date of the notice, appeal to the Circuit Court against the decision of the Minister to revoke the declaration.

(9) The Circuit Court, on the hearing of an appeal under subsection (8), may, as it thinks proper—

  • (a) affirm the decision of the Minister, or

  • (b) direct the Minister not to revoke the declaration.

(10) A decision to revoke a declaration shall take effect—

  • (a) where no appeal to the Circuit Court is brought against the decision of the Minister, on the date on which the period specified in subsection (8) for making such an appeal expires, or

  • (b) where an appeal to the Circuit Court is brought against the decision of the Minister—

    • (i) from the date on which the Circuit Court, under subsection (9)(a), affirms the decision, or

    • (ii) from the date on which the appeal is withdrawn.

(11) In this section “declaration” means a refugee declaration or a subsidiary protection declaration.”

S.9 of the 2015 Act
3

. Whereas s.52(1)(b) of the 2015 Act refers to s.9, it provides the following under the heading of “Cessation of refugee status”:

“9. (1) A person shall cease to be a refugee if he or she—

  • (a) has voluntarily re-availed himself or herself of the protection of the country of nationality,

  • (b) having lost his or her nationality, has voluntarily re-acquired it,

  • (c) has acquired a new nationality (other than as an Irish citizen), and enjoys the protection of the country of his or her new nationality,

  • (d) has voluntarily re-established himself or herself in the country which he or she left or outside which he or she remained owing to fear of persecution,

  • (e) subject to subsections (2) and (3), can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of his or her country of nationality, or

  • (f) subject to subsections (2) and (3), being a stateless person, is able, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, to return to his or her country of former habitual residence.

(2) In determining whether paragraph (e) or (f) of subsection (1) applies, regard shall be had to whether the change of circumstances is of such a significant and non-temporary nature that the person's fear of persecution can no longer be regarded as well-founded.

(3) Paragraphs (e) and (f) of subsection (1) shall not apply to a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself or herself of the protection of his or her country of nationality or, being a stateless person, of the country of former habitual residence.”

Background
4

. The Applicant is a gentleman, born in 1973, who is of Roma ethnic origin. He has resided in Ireland since September 2001, having come to this State with his partner and young son, fleeing persecution in Romania. The Applicant was granted refugee status on 13 October 2004. Exhibit “TF1” comprises the relevant decision by the Refugee Appeals Tribunal (“the RAT”) dated 26 April 2004, in which the RAT was satisfied that the Applicant and his wife could well suffer further persecution if returned to Romania.

5

. The RAT decided that they and their young son should be declared to be refugees in accordance with the provisions of section 2 of the Refugee Act 1996 (as amended) (“the 1996 Act”) and it is clear from the said decision that the grant of refugee status was on the basis, inter alia, that the Applicant suffered persecution in Romania because of his ethnicity and that he had suffered persecution and beatings from the police in Romania.

6

. Exhibit “TF2” comprises the 13 October 2004 grant of refugee status. Under the heading “Your rights in this State”, it is confirmed that the Applicant's rights, which are set out in S.3 of the 1996 Act, include inter alia, an entitlement to work; receive social welfare benefits; reside; travel; practice religion; access the courts; and to form and be a member of associations and trade unions to the same extent “ as an Irish citizen”.

7

. The refugee status declaration goes on to make clear that travel rights are subject to section 4 of the 1996 act, which refers, inter alia to the issuing of a travel document; the Minister's right, in the interest of national security or public policy, to refuse to issue a travel document; the form of a travel document; and the obligation on an Applicant applying for a travel document to provide information reasonably required by the Minister.

8

. Subsequent to receiving the decision to grant refugee status, the Applicant underwent the appropriate registration process; and exhibit “TF3” comprises his Certificate of Registration with the Garda National Immigration Bureau (“GNIB”).

9

. The Applicant has, by now, significant and long-standing ties to this State and to his county of residence where he has lived since 2001. He currently resides with his partner of 27 years and their 2 youngest children. They have 4 children in total, ranging from 16 to 25 years of age, all of whom reside in Ireland and are Irish citizens. The Applicant and his partner also have 4 grandchildren, all of whom were born in Ireland. The Applicant's mother stays with him and his family for a few months each year. His father is deceased. The parents of the Applicant's partner, as well as her 4 sisters, one brother, 4 nieces and 4 nephews also reside in the same town as the Applicant.

10

. The Applicant is now an Irish citizen. On 14 December 2015, the Applicant was granted a Certificate of Naturalisation, a copy of which comprises exhibit “TF4”. Thus, he enjoys a right to reside in this State wholly independent of his status as a refugee.

11

. The Applicant was the subject of a European arrest...

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