Y.Y. v The Minister for Justice and Equality No.7

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 459
• Docket Number: [2016 No. 774 J.R.]
• Court: High Court
• Date: 31 July 2018

[2018] IEHC 459

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. 7)

Deportation – Correct test – Breach of fair procedures – Applicant seeking order of certiorari – Whether there was a breach of fair procedures

Facts: In Y.Y. v Minister for Justice (No. 1) [2017] IEHC 176, the High Court (Humphreys J) declined to grant certiorari of a deportation order and of a decision under s. 3(11) of the Immigration Act 1999. In Y.Y. v Minister for Justice (No. 2) [2017] IEHC 185, Humphreys J declined to grant leave to appeal to the Court of Appeal. In Y.Y. v Minister for Justice (No. 3) [2017] IEHC 334, he declined to continue a stay in favour of the applicant. In Y.Y. v Minister for Justice [2017] IESCDET 38, the Supreme Court gave leave to appeal to that court on limited grounds. In Y.Y. v Minister for Justice [2017] IESC 61, the Supreme Court quashed the s. 3(11) refusal and remitted the proceedings, insofar as they related to the original deportation order, to the High Court to be considered in conjunction with a proposed further s. 3(11) application. Subsequently, further submissions under s. 3(11) were made by the applicant on 10th August, 2017, and a new adverse s. 3(11) decision was made on 27th September, 2017. In Y.Y. v Minister for Justice (No. 4) [2017] IEHC 690, Humphreys J, inter alia, allowed an amendment to the proceedings to challenge the new s. 3(11) decision. In Y.Y. v Minister for Justice (No. 5) (Unreported, High Court, 5th December, 2017), he quashed the second s. 3(11) decision. In Y.Y. v Minister for Justice (No. 6) [2017] IEHC 811, he directed that the s. 3(11) matter be remitted back to the Minister for fresh consideration. Following that order, fresh submissions were made and a further adverse determination was made by the Minister on 11th June, 2018. Humphreys J then allowed a further amendment to deal with the third s. 3(11) refusal. The grounds of challenge essentially resolved under four headings: (i) alleged lack of reasons; (ii) alleged irrationality of specific findings and overall conclusion; (iii) alleged failure to state the correct test; and (iv) alleged breach of fair procedures.

Held by Humphreys J that, having referred to J.K. v Sweden (Application no. 59166/12, European Court of Human Rights, 23rd August, 2016), the respondent Minister failed to state or apply the correct evidential two-part test and he incorrectly took the view that the applicant did not overcome the prima facie case stage. Humphreys J held that there was a breach of fair procedures in that it could not be said that the newspaper reports were immaterial.

Humphreys J held that he would make an order of certiorari removing for the purpose of being quashed the third s. 3(11) decision of 11th June, 2018, but he would first hear further submissions from the parties on: (i) whether the decision should be quashed in full or in part; (ii) whether the matter should be remitted back to the Minister in full or in part; (iii) if it was so remitted back, whether he should give formal directions as to the procedures by which that reconsideration should take place, given that the previous informal direction outlined in Y.Y. (No. 5) at para. 24 was not followed; (iv) if the matter was not remitted back, what were the consequences for the original deportation order.

Application granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of July, 2018

1 The unusual history of this matter is set out in the eight previous judgments or determinations in these proceedings:

(i) In Y.Y. v. Minister for Justice (No. 1) [2017] IEHC 176 [2017] 3 JIC 1306 (Unreported, High Court, 13th March, 2017), I declined to grant certiorari of a deportation order and of a decision under s. 3(11) of the Immigration Act 1999.

(ii) In Y.Y. v. Minister for Justice (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017), I declined to grant leave to appeal to the Court of Appeal.

(iii) In Y.Y. v. Minister for Justice (No. 3) [2017] IEHC 334 [2017] 3 JIC 2409 (Unreported, High Court, 24th March, 2017), I declined to continue a stay in favour of the applicant.

(iv) In Y.Y. v. Minister for Justice [2017] IESCDET 38, the Supreme Court gave leave to appeal to that court on limited grounds.

(v) In Y.Y. v. Minister for Justice [2017] IESC 61 [2018] 1 I.L.R.M. 109, the Supreme Court quashed the s. 3(11) refusal and remitted the proceedings, insofar as they related to the original deportation order, to this court to be considered in conjunction with a proposed further s. 3(11) application. Subsequently, further submissions under s. 3(11) were made by the applicant on 10th August, 2017, and a new adverse s. 3(11) decision was made on 27th September, 2017.

(vi) In Y.Y. v. Minister for Justice (No. 4) [2017] IEHC 690 [2017] 10 JIC 1706 (Unreported, High Court, 17th November, 2017), I, inter alia, allowed an amendment to the proceedings to challenge the new s. 3(11) decision.

(vii) In Y.Y. v. Minister for Justice (No. 5) [2017] IEHC 815 [2017] 12 JIC 1907 (Unreported, High Court, 19th December, 2017), I quashed the second s. 3(11) decision.

(viii) In Y.Y. v. Minister for Justice (No. 6) [2017] IEHC 811 [2017] 12 JIC 2111 (Unreported, High Court, 21st December, 2017), I directed that the s. 3(11) matter be remitted back to the Minister for fresh consideration. Following that order, fresh submissions were made and a further adverse determination was made by the Minister on 11th June, 2018. I then allowed a further amendment to deal with the third s. 3(11) refusal and I now deal with that aspect of the case. The challenge to the original deportation order remains adjourned awaiting the outcome of the present aspect of the proceedings.

2 The present ruling should obviously be read in conjunction with the previous judgments in this matter.

Grounds of Challenge

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. The grounds of challenge essentially resolve under four headings:

(i) alleged lack of reasons;

(ii) alleged irrationality of specific findings and overall conclusion;

(iii) alleged failure to state the correct test; and

(iv) alleged breach of fair procedures.

Context of the applicant's personal situation and an improving country situation

4 The applicant's somewhat legalistic submissions are heavy on self-congratulation as to how specific his lawyers' attention to the applicant's personal case now is. That, however, is probably more of a comment on how weak their earlier submissions were than a demonstration of any unanswerable content in the new submissions. The Strasbourg case law establishes that a decision-maker in the context of art. 3 of the ECHR must assess both the general situation in the country concerned and the personal situation of the applicant.

5 As regards the general situation in the country concerned, it is clear that the Algerian country situation is one of continuing improvement. O'Donnell J. in the Supreme Court judgment in Y.Y., noted at para. 81 that ' this is not a case, however, where it can be said that the Minister was not entitled in any circumstances to come to such a conclusion' of no art. 3 breach. In B.B. v. Secretary of State for the Home Department (SIAC, 8th April, 2016) at para. 35, expert evidence was noted to the effect that, by comparison with the 1990s, according to Dame Anne Pringle ' there are no longer widespread or systematic cases of abuse by the authorities'. Dr. Claire Spencer accepted that ' there had been major change since the end of the civil conflict'. O'Donnell J. noted at para. 46 that SIAC took the view that ' there could be no doubt that there has been marked improvement in Algeria over the last 20 years'. At para. 48, the judgment notes the SIAC view that ' the situation in Algeria continues to develop and therefore up-to-date information and analysis are particularly important'. While obviously this was in a context where SIAC considered that the risk in that case had not been dispelled, nonetheless, any reasonable view of the mass of country material concerned, at least insofar as it has been introduced in the present proceedings, would be that this tells a story of ongoing improvement. That is not to determine the issue as to whether the improvement is sufficient but it is to contextualise the discussion.

6 As regards the applicant's personal situation in the present case, the position of the applicant's brother is central. He has not been subject to any treatment contrary to art. 3 even though his situation is highly comparable and he has terrorist convictions in France. Obviously, the current applicant also has the feature of terrorist convictions in Algeria but, nonetheless, the brother's situation is a highly pertinent factor personal to the present applicant.

7 Remarkably, the applicant's latest submissions also renew his complaints about adverse publicity. In that regard, a notable feature of the case is that I went to considerable lengths to minimise such publicity in this case by redacting the country name from the original judgment, which apart from anything else was a complex logistical exercise given the length of that judgment. The applicant went out of his way to make submissions to the Supreme Court that his view was that such redaction was unnecessary – he wasn't asked about it, he specifically brought it up - which had the predictable effect that the Supreme Court withdrew the redaction and the country name was published. This significantly contributed to any publicity there has been in the matter. Without the country name the publicity would have been much more general if some of it happened at all. When confronted with this...