T. (Russian Federation) v International Protection Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IEHC 271 |
| Court | High Court |
| Docket Number | 2022 No. 737 J.R. |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000
In the Matter of the International Protection Act 2015
[2023] IEHC 271
2022 No. 737 J.R.
THE HIGH COURT
Colm O'Dwyer, SC and Céile Varley for the applicant instructed by KOD Lyons Solicitors
Katherine Mc Gillicuddy for the respondents instructed by the Chief State Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 25 May 2023
This judgment is delivered in respect of a challenge to a decision to refuse the Applicant international protection. The decision was to the effect that the Applicant is excluded from the benefit of international protection on the grounds that he committed a “ serious non-political crime” outside the State prior to his arrival in the State.
It is a fundamental feature of asylum law that a person who has committed a “ serious non-political crime” is deemed to be undeserving of the protection which refugee status entails. Such an exclusion is intended to ensure the integrity of the asylum process, and to ensure that those who have committed such crimes cannot avail of refugee status in order to escape criminal liability. This principle is captured pithily in the phrase that an asylum seeker must have a well-founded fear of persecution not prosecution. However, this phrase tends to oversimplify matters: it must be borne in mind that, in some instances, criminal prosecution can be used as a measure of persecution.
The asylum process is governed by the recast Qualification Directive, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011. The recast Qualification Directive has been transposed into domestic law by, inter alia, the International Protection Act 2015. The legislative concepts of relevance to the present proceedings are as follows.
Section 7 of the International Protection Act 2015 provides that “ acts of persecution” must be—
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(a) sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or
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(b) an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in paragraph (a).
It is expressly provided that prosecution or punishment that is disproportionate or discriminatory may amount to an act of persecution, as may the denial of judicial redress resulting in a disproportionate or discriminatory punishment.
A group shall be considered to form a “ particular social group” where in particular—
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society,
and, depending on the circumstances in the country of origin, a particular social group may include a group based on a common characteristic of sexual orientation.
A “ serious non-political crime” is defined under Section 2 of the International Protection Act 2015 as including particularly cruel actions, even if committed with an allegedly political objective.
Section 10 of the International Protection Act 2015 provides that a person is excluded from being a refugee where there are “ serious reasons” for considering that he or she—
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(a) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,
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(b) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or
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(c) has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
The exclusion also applies where there are “ serious reasons” for considering that a person has “ incited” or otherwise “ participated” in the commission of such a crime or an act.
The United Kingdom Supreme Court has provided the following useful guidance on what is meant by the concept of “ serious reasons for considering”. See Al-Sirri v. Secretary of State for the Home Department [2012] UKSC 54, [2013] 1 A.C. 745 (at paragraph 75):
“We are, it is clear, attempting to discern the autonomous meaning of the words “serious reasons for considering”. We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) “Serious reasons” is stronger than “reasonable grounds”. (2) The evidence from which those reasons are derived must be “clear and credible” or “strong”. (3) “Considering” is stronger than “suspecting”. In our view it is also stronger than “believing”. It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case.”
The Applicant is an adult male from the Caucasus region and is Muslim. The Applicant travelled to Ireland on [date redacted] and made an application for international protection on [date redacted]. These dates appear to be misstated in IPAT's determination.
The Applicant alleges that he is being targeted by the Federal Security Service (“ FSB”) of the Russian Federation and that the FSB have made false accusations of terrorism against him because of his failure to co-operate with them [details redacted]. In particular, the Applicant alleges that he has been falsely accused of travelling to Syria and being a member of the terrorist group known as “ Imrat Kavkaz” or “ Imrat Caucasus”. The Applicant further alleges that if he were returned to the Russian Federation, he would be sent to prison for a long time and that the FSB would engineer his death and report it as a suicide or heart attack.
The Applicant has submitted a number of documents in support of these allegations. To avoid inadvertently disclosing information which might allow the identity of the Applicant to be deduced, these documents will be described in this judgment in general terms only. For example, dates have been deliberately omitted. The documents are on the court file and have been carefully considered in preparing this judgment. The parties are aware of the detail of the documents and can read this judgment in conjunction with the documents as necessary.
It is important to emphasise that the Applicant relies on these documents as evidence that the Russian authorities are pursuing criminal proceedings against him. The Applicant insists that the allegations of criminality contained within these documents are fabricated. Put otherwise, the Applicant contends that while the documents are genuine, in the sense that they consist of search warrants and other documents generated in the course of a criminal procedure, the content of the documents is false. (This distinction appears to have been lost on IPAT when it came to applying the criteria for exclusion).
IPAT made a finding that the Applicant has a well-founded fear of persecution within the meaning of the International Protection Act 2015 on the grounds of religion, imputed political opinion and membership of a particular social group. IPAT characterises the social group as comprising persons suspected of membership of an Islamic terrorist organisation, Imarat Caucasus, and states that suspected Islamic terrorists in the Russian Federation are at risk of torture, imprisonment, and murder by the authorities. IPAT concluded that there is a reasonable chance that if the Applicant were to be returned to Russia he would face a well-founded fear of persecution.
Having concluded that the Applicant meets the criteria for international protection, IPAT then purported to find that there were “ serious reasons” to consider that the Applicant has committed a “ serious non-political crime” prior to his arrival in the State. IPAT purported to find, in the alternative, that the Applicant had incited or otherwise participated in such a crime.
In effect, IPAT purported to find that the allegations of criminality made against the Applicant by the Russian Federation, which the Applicant asserts are fabricated, were justified and that the Applicant should be treated as an actual rather than as a suspected terrorist.
The leading judgment on the interpretation of the exclusion under the Qualification Directive is that...
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