X.X. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IEHC 377
• Date: 24 June 2016
• Court: High Court
• Docket Number: [2015 No. 647 J.R.] [2015 No. 727 J.R.]

[2016] IEHC 377

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 647 J.R.]

[2015 No. 727 J.R.]

BETWEEN

X.X.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Refusal to revoke deportation – The Refugee Act 1996 – Refusal to revoke deportation – Pre-statutory withdrawal of asylum claim – S. 5 of the Illegal Immigrants (Trafficking) Act 2000

Facts: The applicant had filed two set of judicial review proceedings. In the first judicial review application, the applicant sought a declaration that he was entitled to apply under s. 8 of the Refugee Act for a de novo refugee application as his withdrawal of the earlier asylum claim was prior to the enactment of the Refugee Act, 1996. In the second judicial review application, the applicant sought an order of certiorari for quashing the decision of the respondent for the deportation of the applicant. The applicant had been granted a stay on his deportation by the Court of Appeal in the light of observation made by the European Court of Human Rights (ECtHR) pursuant to an application filed by the applicant under r. 39 of the Rules of Court of the European Court of Human Rights (ECtHR) pending the determination of the present judicial review application.

Mr. Justice Richard Humphreys dismissed both applications for a judicial review. The Court held that the withdrawal of the applicant's claim for asylum occurred after the commencement of the Act of 1996 and thus, the provisions of the said Act were applicable in relation to his asylum application, requiring the consent and permission of the respondent for withdrawal. The Court observed that in relation to the first judicial review application, the applicant should have made the claim for asylum to the Commissioner as per s. (8) (1) (c) of the Act of 1996 and not the respondent and thus, the desired relief could not be granted as the Commissioner was not a party to that application. The Court observed that s. 17 (7) of the Refugee Act, 1996, should be interpreted liberally to reflect the intent of the legislature. The Court held that withdrawal of an asylum application would be a ‘failure to give a declaration’ within the ambit of s. 17 (7) of the Act of 1996. The Court held that in order to attack the validity of a decision under s. 5 of the Act of 2000, the appropriate remedy was to seek an order of certiorari and not the declaratory relief. The Court found that the decision of the respondent did not suffer from any infirmity and the respondent had given just, cogent and detailed reasons for its decision after assessment of a plethora of evidence presented before it. The Court found that the applicant had failed to satisfy that he would face a real risk of ill-treatment in the country of origin as evident by the fact of his well-settled family in the country of origin coupled with the support that was available to him from the local police authorities. The Court held that there was nothing to substantiate the applicant's claim under art. 3 of ECHR.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2016

1 The applicant was born in 1963 and is national of Jordan. He claims that between 1993 and 1995 he was tortured in Jordan due to his opposition, on religious grounds, to the policy of the Jordanian regime.

2 The applicant states that he left Jordan in 1995 and that between then and 2000 he travelled between Spain, the Netherlands, Germany and the United Kingdom. Separately to this, he stated in his asylum questionnaire that he also travelled to Oman (although he does not appear to have given this information to the SPIRASI organisation when he consulted them).

3 On 17th February, 2000, the applicant arrived in Ireland with his wife and three children. He applied for asylum on arrival. The asylum regime at that point was a non-statutory one, having initially being put in place on 13th December, 1985, by the ‘von Arnim letter’ and subsequently on 16th December, 1997, by the ‘Hope Hanlon letter’, being in each case a letter from the State to the UN High Commissioner for Refugees (UNHCR).

4 The applicant's fourth child was born in Ireland on 24th June, 2000, and is an Irish citizen, due to the constitutional position that obtained at that time.

5 On 5th July, 2000, the applicant applied for residency in the State based on his parentage of an Irish-born child. On 14th August, 2000, he wrote a letter stating that he ‘wish[ed] to withdraw’ his asylum claim. There is something of a dispute as to the effect of this letter, which I will address further below.

6 On 15th August, 2000, the asylum division of the Department of Justice, Equality and Law Reform acknowledged his wish to withdraw his asylum claim and acknowledge his application for residency. The letter stated that all future correspondence should be directed to the immigration division.

7 On 20th November, 2000, the Refugee Act 1996 was commenced.

8 On 19th January, 2001, an undated letter was received by the Department in which the applicant referred again to his wish to withdraw his asylum claim.

9 On 25th January, 2001, the Refugee Applications Commissioner wrote a letter stating that the asylum file had already being furnished to the immigration division of the Department.

10 On 23rd February, 2001, the applicant was granted residency in the State by virtue of his parentage of an Irish-born child. There is no specific reference in the letter to s. 17(6) of the 1996 Act which provides for such a permission to be giving to a person who has withdrawn their application for asylum.

11 On 15th September, 2003, the Immigration Act 2003 commenced, insofar as it amended s. 17(1)(a) of the Refugee Act 1996. This introduced a specific provision that where an asylum claim was withdrawn, refugee status would be formally refused.

12 On 24th June, 2009, the applicant was issued with a Jordanian passport valid until 23rd June, 2014.

13 In late 2010, one of the applicant's children was detained in Jordan.

14 On 1st March, 2011, the European Communities ( Asylum Procedures) Regulations 2011 came into force.

15 In or about April 2013, the applicant's older son died fighting in Syria. The applicant has not made clear with which protagonist his son was associated, although his counsel was at pains to make clear that it was not being suggested that he was associated with the official opposition.

16 In or about August, 2013, the applicant's wife returned to Jordan with two of the children, and subsequent to that date there was intermittent travel by family members back and forward between Ireland and Jordan.

17 On 14th February, 2013, the European Union (Subsidiary Protection) Regulations 2013 came into force.

18 On 23rd August, 2014, the applicant's residence permission in the State, which had been renewed from time to time, expired. The applicant did not take steps to seek to renew it for a number of months.

19 In the interim, at a time when he had no permission to be in the State, he obtained his current Jordanian passport on 8th December, 2014, valid until 7th December, 2019.

20 On 15th January, 2015, the applicant went to the Garda National Immigration Bureau (G.N.I.B.) to apply for renewal of his permission. His Irish born child had been in Jordan for a period (where the applicant's wife and children and other children also were at this time). The applicant was sent away and told to clarify details regarding his family's situation.

21 In February, 2015, the applicant returned to the G.N.I.B. to renew his permission with his Irish-born child. However, it was not renewed at that point.

22 On 18th February, 2015, solicitors on his behalf wrote to the Minister applying for the renewal.

23 On 13th March, 2015, the applicant received a proposal to deport him. The reasons underlying the proposal stated that he was believed to be an organiser for Islamic State. He says that this was the first notice he had that he was considered to be an Islamist suspect.

24 On 7th April, 2015, the applicant made submissions under s. 3 of the Immigration Act 1999, for leave to remain. He also made an application for residence with reference to the Zambrano judgment (Case C-34/09, Ruiz Zambrano v. Office National de l'Emploi, Court of Justice of the European Union, 8th March, 2011) based on his youngest child's Irish citizenship.

25 He states that at some stage in 2015, his older surviving son was detained in Jordan, released and detained again.

26 The procedural history of this case now takes a unusual turn in that on 8th April, 2015, the applicant's solicitors wrote to the Refugee Applications Commissioner making a de novo application for refugee status, stating that there should be no need to apply for consent under s. 17(7) of the Refugee Act 1996 (an application for the Minister's consent to re-enter the asylum process) because the original application was pre-statutory.

27 The Refugee Applications Commissioner responded to this application on 9th April, 2015, stating that the applicant had withdrawn his asylum claim in 2000. The clear implication of this letter was that the consent of the Minister under s. 17(7) was indeed required.

28 On the 15th April, 2015, following receipt of this letter, the applicant made an application under s. 17(7) of the 1996 Act, which was stated to be without prejudice to his view that the consent of the Minister was not required. He also furnished supplementary material regarding his Zambrano claim.

29 On 17th June, 2015, the Minister refused the application for consent under s. 17(7) for the making of a second asylum claim.

30 On 14th July, 2015, the applicant's solicitors wrote to the department and the Refugee Applications Commissioner formally enclosing...