T.F. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 20 July 2023
• Neutral Citation: [2023] IECA 183
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2022/193

Between/

T. F.

Applicant/Appellant

and

Minister for Justice and Equality

Respondent

[2023] IECA 183

Ní Raifeartaigh J.

Allen J.

Butler J.

Appeal Number: 2022/193

High Court Record Number: 2021 563 JR

THE COURT OF APPEAL

NO REDACTIONS NEEDED

JUDGMENT of Ms. Justice Butler delivered on the 20 ^th day of July, 2023

Introduction

1 . This appeal raises a number of issues concerning the revocation of refugee status granted to the appellant nearly twenty years ago. These issues arise in circumstances where a request was made on foot of a European Arrest Warrant (“EAW”) to surrender the appellant to his country of origin in respect of serious criminal charges. As will be seen such a request has, in fact, been made twice and on each occasion, surrender was legally impossible because the appellant was a recognised refugee. The appellant complains, inter alia, that the decision made by the respondent on 18 May 2021 revoking his refugee status under s. 52 of the International Protection Act 2015 (“the 2015 Act”) was made for an improper purpose, i.e. to facilitate his surrender to Romania on foot of an EAW. The appellant is now a naturalised Irish citizen so the revocation of his refugee status would not affect his entitlement to remain resident in the State. However, for reasons explained below, it would have the effect of making him amenable to surrender to Romania under the EAW regime.

2 . The appellant challenges the validity of the respondent's decision on a number of grounds both procedural and substantive. The former include complaints of a breach of fair procedures arising from the manner in which the process under s. 52 was conducted in light of correspondence sent to the respondent by the appellant's solicitors, complaints regarding the identity of the decision maker and a complaint that the decision to withdraw refugee status was tainted by knowledge of the allegations of the criminal conduct underlying the EAW. The latter focusses on an alleged failure on the part of the respondent to conduct an individualised assessment of the appellant's circumstances before deciding to revoke his refugee status and is linked to a complaint that the reasons given for the decision do not demonstrate that such an individualised assessment was carried out. There are also complaints of delay in moving to revoke the applicant's refugee status.

3 . These grounds were all disputed by the respondent (also “the Minister”) who in addition contends that relief should not be granted to the appellant by way of judicial review because he has an alternative remedy available to him by way of a statutory right of appeal to the Circuit Court. The appellant has in fact lodged such an appeal, but it has not yet proceeded to hearing, presumably pending the outcome of this judicial review.

4 . I note that the appellant's Notice of Appeal includes two grounds of appeal contending that s. 52 of the 2015 Act is unconstitutional and/or in breach of European Convention on Human Rights. This is also flagged as an issue in the appellant's written legal submissions but was not actually addressed in either the written or oral argument made on his behalf. The Minister has contended throughout that this plea is improperly made in circumstances where neither the Attorney General nor the Irish Human Rights and Equality Commission were parties to the proceedings and, in any event, that insufficient details have been pleaded to support such a plea. As the challenge to the validity of s. 52 was not argued before the High Court and as the grounds concerning the validity of s. 52 were not actively pursued on behalf of the appellant, I do not propose to deal with them in this judgment.

5 . The High Court (Heslin J.) refused the appellant's application in a very comprehensive judgment [2022] IEHC 486. Both the factual and legal background are set out in that judgment with commendable clarity thus obviating the need for this Court to repeat that exercise in any detail. Apart from finding against the applicant on all the legal grounds raised, it is probably fair to observe that the trial judge was very critical of the approach taken by the applicant to the process under s. 52 of the 2015 Act which led to the revocation decision. As noted by the judge, the only submission made by the appellant to the Minister purported to address, in very general terms, the legality of the process and did not make any substantial or evidenced-based arguments as to why his grant of refugee status should not be revoked.

6 . I propose to examine the issues raised under five broad headings, namely, issues arising due to the relationship between this s. 52 process and the EAWs which had been issued by the Romanian authorities; issues concerning fair procedures in the s. 52 process; whether the Minister complied with the obligation to conduct an individualised assessment of the appellant's position under s. 52 and whether the reasons given for that decision support the contention that she did; whether the Minister's proposal to revoke the appellant's refugee status was vitiated by delay and, finally, if the appellant succeeds in reversing the decision of the trial judge on any of these grounds, whether this Court should in the exercise of its discretion decline to allow the appeal on the basis that there is an alternative remedy available to him. In order to address these issues, it is necessary firstly to set out the relevant statutory provisions governing the situation and then to examine the factual and legal background within which they arise.

Legislative Framework

7 . The termination of refugee status is governed by two separate but interacting statutory provisions. Section 9 of the 2015 Act sets out the circumstances in which a person will cease to be a refugee and s. 52 sets out the procedure to be followed by the Minister before she revokes a refugee declaration (such declarations having been given under s. 47 of the same Act).

8 . The relevant parts of s. 9 are as follows:-

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

(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,…

(e) subject to sub-sections (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,…

(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.”

(The other sub-paragraphs of subsection (1) are not relevant to the appellant's circumstances and sub-section (3), which requires to be invoked by the refugee whose status is in issue, was not relied on by the appellant.)

9 . The structure of s. 9, which mirrors the provisions of Article 11 of the Recast Qualification Directive 2011/95/EU (“the Qualification Directive”), is interesting because, on the one hand, it suggests that the cesser provided for under s. 9(1) is automatic when one or more of the conditions set out in sub-paragraphs (a) to (f) are satisfied. On the other hand, s. 9(2) clearly envisages that a “determination” will be made as to whether a refugee has ceased to be a refugee. This is analogous to the process whereby someone is recognised as a refugee in the first instance which is legally framed as the recognition of an existing status rather than a decision which confers that status upon the subject. Presumably the effect of this (particularly when s. 9 (1)(e) is read in conjunction with s. 52) is that refugee status, once granted, will not be treated as having ceased unless a determination is made to that effect and the declaration formally revoked, but the determination is a factual one as to whether any of the conditions set out in s. 9(1) are met, rather than being the exercise of a discretion.

10 . It may be noted that s. 9(1)(c) refers to the acquisition of a new nationality other than as an Irish citizen. Under s. 47(9) of the 2015 Act a declaration of refugee status (or subsidiary protection status) given or deemed to have been given under the 2015 Act “ceases to be in force” when the person to whom it has been given becomes an Irish citizen. Section 47(9) does not envisage any separate determination being required to formally revoke such status. Under s. 69(1) a declaration of refugee status made under s. 17 of the Refugee Act 1996 is deemed to have been made under the 2015 Act and the provisions of the 2015 Act apply to it.

11 . Section 52 then sets out the process by which a determination can be made as to whether refugee status has ceased. The section is broader than simply dealing with the circumstances in which refugee status will cease as it also covers cases in which a person is or was excluded from being a refugee under s. 10 but was nonetheless recognised as such and circumstances where a refugee declaration was acquired through misrepresentation, omission of facts or use of false documents. Further, under s. 52(2) the Minister has a discretionary power to revoke refugee status if the person is a danger to the security of the State or has been convicted of a particularly serious crime. These grounds, which relate to the conduct of the refugee, are not relevant to the present appeal. In setting out the relevant provisions of s. 52, I have excluded those parts which refer exclusively to these issues and the parallel provisions which apply to the revocation of a subsidiary protection declaration.

12 . The relevant portions of s. 52 are as follows:-

“52. (1) The Minister shall, in accordance with this section, revoke a refugee declaration...