Y.Y. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 27 July 2017
• Neutral Citation: [2017] IESC 61
• Court: Supreme Court
• Docket Number: Supreme Court No.: 43/2017
• Date: 27 July 2017

BETWEEN:

Y.Y.

Applicant/Appellant

AND

The Minister for Justice and Equality

Respondent/Respondent

[2017] IESC 61

O'Donnell Donal J.

Denham C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Supreme Court No.: 43/2017

SUPREME COURT

Immigration and asylum – Deportation – Risk of inhuman or degrading treatment – Appellant seeking to challenge a deportation order – Whether the respondent was entitled to conclude that the appellant could be deported without a real risk of torture, or inhuman or degrading treatment

Facts: The appellant appealed to the Supreme Court against the judgment and order of the High Court dated the 13th March, 2017 ([2017] IEHC 176) whereby Humphreys J dismissed his challenge to (i) a deportation order pursuant to s. 3(1) of the Immigration Act 1999 and (ii) a decision refusing to revoke the deportation order pursuant to s. 3(11) of the same Act. The appellant contended that once the Refugee Appeals Tribunal, which heard evidence including oral evidence from the appellant and other witnesses, had decided that there was a real risk of serious harm, the respondent, the Minister for Justice and Equality, when considering the risk of torture or inhuman or degrading treatment, was bound, as a matter of law, by that determination so that he or she could not depart from it. In this regard the appellant relied on the decision of the UK Supreme Court in R (Evans) v Attorney General [2015] UKSC 21.

Held by O'Donnell J that this was not a case where it could be said that the Minister was not entitled in any circumstances to come to the conclusion that the appellant could be deported to Algeria without a real risk of torture, or inhuman or degrading treatment, or conversely that there was no reasonable basis upon which any minister could conclude that there was no real risk of a breach of Article 3 of the European Convention of Human Rights.

O'Donnell J held that the matter must be remitted to the Minister for further consideration.

Judgment approved.

Judgment of O'Donnell J. delivered the 27th of July 2017

1 This is an appeal against the judgment and order of the High Court dated the 13th March, 2017, ( [2017] I.E.H.C. 176) whereby Humphreys J. dismissed the appellant's challenge to (i) a deportation order pursuant to s.3 (1) of the Immigration Act 1999 ('the s.3(1) decision') and; (ii) a decision refusing to revoke the deportation order pursuant to s.3(11) of the same Act ('the s.3(11) decision'). In this case, the High Court made an order restraining publication of material that would identify the appellant. According, the appellant will be referred to as Y.Y. for the purposes of this judgment. The High Court, from an abundance of caution, also ordered that the country to which deportation was proposed should not be identified, other than as Country X. The parties to this appeal are agreed that this restriction is not required at this stage and accordingly that designation has not been used in this case. As will become apparent, this case presents in a stark way, the difficulties created when it is sought to deport an individual who is considered a threat to the security of this state and others but who contends that he will be subjected to treatment contrary to Article 3 of the European Convention of Human Rights if returned to his country of origin, which in such circumstances is the only country to which he or she can realistically be returned. The appellant has been in custody for the duration of these proceedings, first while serving a sentence, and latterly has been detained pending the execution of the deportation order challenged in this case. The detention period provided for under section 5 of the Immigration Act 1999 (as amended) is limited, but time does not run for that purpose during the currency of proceedings challenging a deportation order, as these proceedings do.

Facts

2 Y.Y. (hereinafter 'the appellant') is a national of Algeria. In 1996 and 1997, the appellant was convicted in absentia of terrorism related offences in Algeria. The offences he was convicted were as follows:

(i) on 16th May, 1996, for forming an armed terrorist group intending to spread murder and sabotage, forethought deliberate murder, attempted assignation, arson and theft;

(ii) on 23rd December, 1996, for the crimes of forethought deliberate murder, forming an armed terrorist group intending to harm the security of the country and its authorities and possession of war weapons;

(iii) on 21st September, 1997, for forming an armed terrorist group, for forethought deliberate murder, assistance of an armed terrorist group and failure to report;

(iv) on 8th November, 1997, for forming an armed terrorist group, for forethought deliberate murder, assistance of an armed terrorist group and failure to report;

(v) on 18th November, 1997, for forming an armed terrorist group intending to harm the security of the country and forethought deliberate murder.

He was sentenced to three life sentences and two death sentences. Although Algeria retains the death penalty as a punishment, Algeria has not carried out an execution in over twenty years, and therefore is regarded to be in practice abolitionist. While the fact the death sentences were passed and have not been commuted in any way is striking, they are not relevant to these proceedings since it is not now suggested that there is sufficient risk of enforcement to give rise to any claim.

3 The appellant arrived in Ireland on 15th July, 1997, and applied for asylum under a false identity and false documents. His claim for asylum was refused by the Refugee Applications Commissioner. However, he successfully appealed this decision to the Refugee Appeals Tribunal which in the words of the High Court judge 'was taken in by his falsehoods', and he was granted refugee status on 2nd April, 2000. He was also granted travel documentation later that year on 10th October, 2000, which as it happened allowed him to leave Ireland to commit multiple offences abroad. It will be apparent from the facts of this case, up to and including the appellant's conduct in response to the deportation order challenged in this case, that the appellant has lied and misled authorities in this country and in others, and has been guilty of offences, some of which were very serious, in a number of European jurisdictions including Ireland. There is no reason to doubt the assessment of him as someone who poses a threat to the security of this state and others. Nevertheless it is said that his deportation to Algeria is precluded by the obligations of this state in international law, now implemented in national law. His case therefore poses a very difficult issue with which other countries and legal systems have also grappled.

4 The appellant was arrested in Andorra for fraud offences in 2001 and was released on bail. From Andorra, he then travelled to Marseille in France in 2002. On the 23rd July, 2002, he was arrested by the French authorities in connection with terrorist related offences. On 29th November, 2006, the Tribunal de Grande Instance de Paris convicted the appellant of the following offences:

(i) membership of a criminal organisation preparing acts of terrorism in the UK, Ireland, Spain, Andorra and France between 1997 and 2002;

(ii) terrorism/fraudulent detention of numerous false administrative documents, committed in Marseille in 2001 and 2002;

(iii) terrorism/use of a false administrative document which indicates an identity or an occupation, committed in Marseille in 2001 and 2002;

(iv) receiving stolen goods, committed in Marseille in 2001 and 2002;

(v) illegal entry or illegal stay of a foreigner in France, committed in Marseille in 2001 and 2002.

The Tribunal de Grande Instance de Paris sentenced the appellant to eight years' imprisonment. The appellant's brothers, G.Y. and C.Y., were also before the French court at the same time for terrorist related offences; a fact that was later denied by the appellant in his subsequent representations to the Irish asylum authorities.

5 The appellant applied for asylum in France in January, 2009 prior to his release from custody and this application was refused. After being released from prison, the appellant was declared missing in France on the 26th June, 2009. On 1st, September, 2010, the appellant was convicted in absentia in the Criminal Court of Verdun for non-compliance with a residence order for non-nationals faced with deportation. He was sentenced to 6 months' imprisonment in relation to this offence. That sentence appears to be outstanding.

6 In response to the appellant's failed attempt to apply for refugee status in France, the Irish authorities initiated proceedings on 10th February, 2009, to revoke the applicant's refugee status in Ireland. However, the appellant somehow left France and re-entered Ireland unlawfully at some point during 2009. The Minister for Justice and Equality ('the Minister') proceeded to revoke the declaration of refugee status on 5th August, 2011, on the basis that the appellant had provide materially false and misleading information to the Irish asylum authorities.

7 The appellant subsequently filed applications for permission to re-enter the asylum process (section 17(7) of the Refugee Act, 1996, leave to remain (section 3 of the Immigration Act, 1999), and subsidiary protection ( Directive 2004/83/EC). Each of these applications were considered and refused by the Minister.

8 In her decision on the s.17 application to re-enter the asylum process, the Minister, in outlining her reasons for rejecting application, noted that the appellant had assumed an identity previously unknown to the Department. The decision dated 18th September, 2014, highlighted the serious inconsistencies between the appellant's original and subsequent asylum applications, as he previously had...