Y.Y. v the Minister for Justice and Equality No. 9

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date28 January 2019
Neutral Citation[2019] IEHC 27
Date28 January 2019
Docket Number[2016 No. 774 J.R.]

[2019] IEHC 27

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 774 J.R.]

BETWEEN
Y.Y.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

(No. 9)

Immigration – Deportation order – Error of law – Applicant seeking revocation of a deportation order – Whether the respondent made an error of law

Facts: The High Court (Humphreys J) quashed the latest decision by the respondent, the Minister for Justice and Equality, to refuse to revoke a deportation order against the applicant under s. 3(11) of the Immigration Act 1999 and gave certain directions regarding the procedure to be adopted in the reconsideration of the matter by the Minister. Following that decision, the applicant made written submissions dated 9th October, 2018 setting out thirteen issues that he thought should be specifically addressed. He contended that the Minister ultimately dealt with ten of those points but did not give reasons for three of them. The Minister subsequently furnished a schedule of documents being relied on, dated 11th October, 2018. That addressed any fair procedures concerns. The Minister, at the request of the applicant, furnished further translated material on 18th October, 2018. The applicant then made further s. 3(11) submissions on 26th October, 2018. Following consideration of those submissions, the Minister refused the s. 3(11) application on 22nd November, 2018 and the applicant challenged that refusal. The applicant alleged that the Minister made an error of law in the test to be applied for the existence or otherwise of an ECHR art. 3 risk. The applicant alleged a lack of reasons in relation to the following: an absence of inspection facilities; the rejection of the applicant’s submissions regarding a general violation of the Algerian constitution and human rights standards; and not accepting the applicant’s arguments based on a submission from the Collectif des Familles de disparus en Algérie and EuroMed Rights to the UN Human Rights Committee and the expert reports of Prof. Joffé. The applicant’s claim of irrationality was based on the Minister’s finding of a lack of general and systemic use of torture and inhuman or degrading treatment or punishment, the finding of improvement in the country situation in Algeria, the finding of similarity with the applicant’s brother’s case, the finding that the applicant’s expert reports did not provide an in-depth examination of the applicant’s individual situation and then the contention that the overall conclusion was unreasonable.

Held by Humphreys J that the Minister did not err in law; the Minister did not adopt an incorrect test on a fair reading of the decision overall, having regard in particular to the wealth of Strasbourg case law considered. Humphreys J held that the decision articulated adequate reasons that made clear why the Minister reached the conclusion he did. As regards the allegation of unreasonableness, Humphreys J held that there were a range of factors referred to at various points in the decision that provided material that entitled the Minister to come to the conclusion that doubts in relation to a risk for the applicant had been dispelled for the purposes of art. 3 of the ECHR.

Humphreys J held that the proceedings would be dismissed insofar as they challenged the latest s. 3(11) decision on the grounds as currently pleaded; and (ii) that the proceedings would be adjourned to allow the applicant an opportunity if he wished to seek an amendment to the pleadings regarding the issue of reports of incommunicado detention as referred to in the judgment.

Proceedings adjourned.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 28th day of January, 2019
1

The procedural history of this matter is set out in Y.Y. v. Minister for Justice and Equality (No. 8) [2018] IEHC 537 [2018] 9 JIC 2505 (Unreported, High Court, 25th September, 2018). Where matters rested following that decision was that I quashed the latest decision by the Minister to refuse to revoke a deportation order against the applicant under s. 3(11) of the Immigration Act 1999 and gave certain directions regarding the procedure to be adopted in the reconsideration of the matter by the Minister (see para. 14). Following that decision, the applicant made written submissions dated 9th October, 2018 setting out a ‘ list of the comparable cases and other important points that would require to be addressed that the applicant contends come within para. 64 of the judgment of O'Donnell J. in Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109. That set out thirteen issues that the applicant thought should be specifically addressed. He contends that the Minister ultimately dealt with ten of these points but did not give reasons for three of them. The Minister subsequently furnished a schedule of documents being relied on, dated 11th October, 2018. That addressed any fair procedures concerns, and indeed counsel for the applicant now states that no fair procedures issue is being pursued. The Minister, at the request of the applicant, furnished further translated material on 18th October, 2018. The applicant then made further s. 3(11) submissions on 26th October, 2018. Following consideration of those submissions, the Minister refused the s. 3(11) application on 22nd November, 2018 and at this stage of the proceedings, I am dealing with a challenge to that refusal.

2

Attached to this judgment is an appendix setting out a list of the country material that was considered by the Minister in the comprehensive decision that is now challenged. In addition to that material, the Minister also considered a body of caselaw which is set out later in this judgment. Following liberty having been given to amend the proceedings, the applicant filed an amended statement of grounds on 10th December, 2018 and then delivered written legal submissions dated 8th January, 2019. The respondent delivered replying written submissions, dated 9th January, 2019.

3

I have received helpful submissions from Mr. Michael Lynn S.C. (with Mr. David Leonard B.L.) for the applicant and from Mr. Remy Farrell S.C. (with Ms. Sinead McGrath B.L.) for the respondent.

ECHR-related caselaw considered in impugned decision
4

The s. 3(11) decision considers a range of ECHR-related caselaw, as follows:

(i) Vilvrajah v. the United Kingdom (Application no. 13163/87, European Court of Human Rights, 30th October, 1991)

(ii) Ýlhan v. Turkey (Application no. 22277/93, European Court of Human Rights, 27th June, 2000)

(iii) Katani v. Germany (Application no. 67679/01, European Court of Human Rights, 31st May, 2001)

(iv) Müslim v. Turkey (Application no. 53566/99, European Court of Human Rights, 26th April, 2005)

(v) Z v. Secretary of State for the Home Department SC/37/2005, United Kingdom: Special Immigration Appeals Commission (SIAC), 14th May 2007

(vi) Mamatkulov v. Turkey (Application no. 46827/99, European Court of Human Rights, 4th February, 2008)

(vii) Saadi v. Italy (Application No. 37201/06, European Court of Human Rights, 28th February, 2008)

(viii) N.A. v. United Kingdom (Application no. 25904/07, European Court of Human Rights, 6th August, 2008)

(ix) Daoudi v. France (Application No. 19576/08, European Court of Human Rights, 3rd December, 2009)

(x) Q.J. v. Secretary of State for the Home Department SC/84/2009, United Kingdom: Special Immigration Appeals Commission (SIAC), 14th December, 2009

(xi) R.C. v. Sweden (Application no. 41827/07, European Court of Human Rights, 9th June, 2010)

(xii) Minister for Justice, Equality and Law Reform v. Rettinger [2010] IESC 45

(xiii) H.R. v. France (Application No. 64780/09, European Court of Human Rights, 22nd September, 2011)

(xiv) F.G. v. Sweden (Application no. 43611/11, European Court of Human Rights, 16th January, 2014)

(xv) B.B. and Others v. Secretary of State for the Home Department [2015] EWCA Civ 9

(xvi) J.K. v. Sweden (Application No. 59166/12, European Court of Human Rights, 23rd August, 2016)

(xvii) X. v. Switzerland (Application no. 16744/14, European Court of Human Rights, 26th January, 2017)

(xviii) Y.Y. v. Minister for Justice and Equality (No. 1) [2017] IEHC 176 [2017] 3 JIC 1306 (Unreported, High Court, 13th March, 2017)

(xix) Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017)

(xx) Y.Y. v. Minister for Justice and Equality (No. 3) [2017] IEHC 334 [2017] 3 JIC 2409 (Unreported, High Court, 24th March, 2017)

(xxi) Y.Y. v. Minister for Justice and Equality (No. 4) [2017] IEHC 690 [2017] 10 JIC 1706 (Unreported, High Court, 17th November, 2017)

(xxii) Y.Y. v. Minister for Justice and Equality (No. 5) [2017] IEHC 815 [2017] 12 JIC 1907 (Unreported, High Court, 19th December, 2017)

(xxiii) Y.Y. v. Minister for Justice and Equality (No. 6) [2017] IEHC 811 [2017] 12 JIC 2111 (Unreported, High Court, 21st December, 2017)

(xxiv) Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109

(xxv) Y.Y. v. Minister for Justice and Equality (No. 7) [2018] IEHC 459 [2018] 7 JIC 3134 (Unreported, High Court, 31st July, 2018)

(xxvi) Y.Y. v. Minister for Justice and Equality (No. 8) [2018] IEHC 537 [2018] 9 JIC 2505 (Unreported, High Court, 25th September, 2018)

(xxvii) X v. Sweden (Application no. 36417/16, European Court of Human Rights, 9th January, 2018)

(xxviii) M.A. v. France (Application no. 9373/15, European Court of Human Rights, 1st February, 2018)

(xxix) A.S. v. France (Application no. 46240/15, European Court of Human Rights, 19th April, 2018)

(xxx) X. v. the Netherlands (Application no. 14319/17, European Court of Human Rights, 10th July, 2018)

5

This was certainly not a case where the Minister has failed to inform himself of, or to appropriately consider, the Strasbourg jurisprudence. I should emphasise that while the right not to be tortured also arises under Article...

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