Right to Work
On Friday, 09 February 2018, the Supreme Court declared Section 16(3)(b) of the International Protection Act, which prohibited asylum seekers from seeking or entering employment, unconstitutional. The (exceptionally limited) right to work scheme that is now in place for asylum seekers, is discussed here.
Status Determination Procedure
A very long running saga (possibly) came to an end in the Supreme Court on Valentine’s Day 2018 that being the case of M.M. v Minister for Justice and Equality (see previous decision from High Court in 2011 here , the first decision from the Court of Justice of the European Union (CJEU) from 2012 here, the second decision of the High Court from 2013 here, the decision of the Supreme Court asking further questions to the CJEU in 2014 here, the second judgment of the CJEU in February 2017 here). This case is a legacy case, given that the International Protection Act 2015 now adopts a single procedure to determining refugee and/or subsidiary protection grounds for an asylum applicant. Prior to the single procedure under the 2015 Act, an applicant would have had to (i) apply for refugee status, including any appeal; and (ii) if desired, apply for subsidiary protection status. At the time M.M. made his claim for subsidiary protection, the decision on the subsidiary protection claim was made by an Executive Officer in the Department of Justice and Equality. This decision was then approved by a Higher Executive Officer, and determined by an Assistant Principal. The Supreme Court, in light of the 2017 CJEU decision held:
(1) At the time M.M.’s subsidiary protection application was made, a written only application was permissible.
(2) It was permissible to take into account the negative decisions of the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The applicant had simply restated his refugee claim for the purposes of his subsidiary protection claim.
(3) An oral hearing was only required if the decision maker was not “objectively in a position….to determine with full knowledge of the facts whether substantial grounds have been shown for believing that if returned to his country of origin, he would face a real risk of suffering serious harm.”
As the applicant deduced no new evidence for the subsidiary protection decision maker, there was no requirement to hold an oral hearing.
O’Donnell J. in the Supreme Court, with some hesitation, made a number of interesting comments. O’Donnell J. noted that decision makers should take care to distinguish ‘credibility’ and ‘credible’. The phrases credibility is often used as a synonym for the truth ofa protection seekers testimony. The phrase ‘credible’, whether the consequences claimed by a protection applicant are likely to happen, is something different. A person’s credibility may be impeccable, but the serious harm claimed may not be credible. O’Donnell J. ended the Supreme Court decision on a less than happy note
It is difficult to be enthusiastic about the decision making process [in this case] to date, even though characterised by conscientious and well meaning decisions at each stage, or be optimistic about the future progress of this or related cases.
Court of Appeal
Asylum-Choice of State
In M.I.F. (Pakistan) v IPAT, the Court of Appeal had to consider whether to grant the applicant permission to challenge whether he had a right to choose his state that he lodges an asylum claim in, by virtue of Article 31 of the Refugee Convention. Hogan J. gave the decision of the Court, rejecting leave. Article 31 of the Refugee Convention provides:
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country
The applicant had lived in the United Kingdom for several years, returned to Pakistan, and claimed an incident occurred that was central to his asylum claim. The applicant returned to the United Kingdom in 2013, and then came to Ireland and applied for asylum in April 2015.
Under the terms of the Dublin III Regulation, the United Kingdom agreed to “take charge” of the applicant’s asylum claim.
Hogan J. stated that Article 31 of the Refugee Convention simply meant that refugees could not be prosecuted for travelling on false documents where they came “directly” from the territory of the persecuting State. There was no requirement upon States by virtue of the Refugee Convention to insist that an individual asylum seeker had an absolute right to determine the State in which his/her asylum claim would be determined. While the Refugee Convention is specifically mentioned in the European Union Charter of Fundamental Rights, this does not place the Refugee Convention above EU refugee law. Hogan J. noted that
The application of Dublin III Regulation does not in any sense amount to a penalty imposed by reason of illegal entry of a refugee…It rather amounts instead to the division of responsibility between the Member States for the consideration and determination of applications of refugee status.
In S.A. (South Africa and Ghana), the applicant challenged the decision of the International Protection Appeals Tribunal on seven grounds. The application to challenge the decision of IPAT was ultimately dismissed. One of the grounds of challenge related to whether IPAT had to engage with UNHCR guidelines. Humphreys J. noted in general,
…the UNHCR (which is not entirely a disinterested body in the sense that advocacy is a key part of its brief) could produce documents hundreds of pages long at any time, any fragment of which would be the basis of certiorari if not followed to the letter. That would be to set an impossible task for IPAT members.
More specifically, Humphreys J. confirmed that decision makers in IPAT did not have to
self-abase by making some sort of express public declaration that they had examined their prejudices.
Deportation (Family and Private Life)
In Lingurar , the High Court emphasised that best interests of the child principles cannot outweigh a serious threat to public policy due to an individual’s past criminal behavior in removal decisions under EU law. The ability to judicially review the decision of the Department of Justice in this case by means of judicial review, is an effective remedy.
In a spirited judgment, Humphreys J. had to deal with an application by an individual to prevent his removal from Ireland. In M.K.F.S. (Pakistan), the applicant entered into a marriage with a Portuguese national. Humphreys J. stated that this was a marriage of convenience or a sham marriage. In refusing to restrain the applicant’s deportation, Humphreys J. stated,
The Constitution cherishes rights of individuals…and specifically acknowledges the natural rights of the family as the fundamental unit group of society. It would make a mockery of these constitutional precepts and of the institutional and social order established by the Constitution for the law to acknowledge the validity of a sham marriage…
The case of Azeem and V.D (Zimbabwe) (No. 2) provides an overview of how the Irish High Court will approach arguments that removal of a member of a family from Ireland in a deportation/removal context, will breach the right to private and family life under Article 8 ECHR.
- Deportation only breaches Article 8 ECHR in “exceptional circumstances”.
- Deportation can occur even if it is likely to impact on the physical health of an individual (thereby engaging her right to private life).
- It is for the applicant to prove as a matter of probability that such exceptional circumstances apply to her particular case. What constitutes exceptional circumstances “are the sort of thing that eludes precise abstract definition.”
- Only in very exceptional circumstances will Ireland have to investigate the disparity between medical care available in Ireland and in other jurisdictions, and only in very exceptional circumstances will a disparity in medical care/treatment lead to a breach of Art 8 ECHR (or Art. 3 ECHR).
In O.A.B. (Nigeria), the applicant arrived in Ireland as an unaccompanied minor in 2007. His applications for protection status were rejected. The applicant had a child, but contact with the child had been patchy. The applicant was denied Zambrano status, however it was his challenged of the deportation order that was the issue for the court in this case. Humphreys J. noted that the applicant could not be considered a “settled migrant” for the purposes of Article 8 rights under the ECHR, The applicant was convicted of a number of offences, including assault and theft. Humphreys J noted that it was not for the High Court (or any other body) to substitute its proportionality analysis for that of the Minister for Justice, exercising legislative power to deport an individual. The rights of the child (under Article 42A of the Constitution and/or Article 8 ECHR) does not automatically override a decision by the Minister for Justice to deport. The Minister had considered the applicant’s family life/rights, but determined that this did not prevent the deportation of the applicant. Commenting on how the relationship between the applicant and his daughter may continue, Humphreys J stated
The relationship can continue by telephonic or other electronic means or by meet-ups in third countries, on holiday periods and so on, or indeed she can come to Nigeria to visit him.
In M.A.M (Somalia) and others, the precise rights to family reunification of those who were formerly refugees, but now naturalised Irish citizens was discussed. Under the now repealed Refugee Act 1996, there was no automatic withdrawal of an individual’s refugee status once she acquired citizenship. This automatic withdrawal of refugee/protection status upon naturalisation is now explicitly provided for in the International Protection Act 2015.
However, Mr Justice Humphreys stated that under both the 1996 Act and the 2015 Act, once a refugee/ person with subsidiary protection acquires Irish citizenship, then she no longer enjoys a right to family reunification under the 2015 Act. That the Minister for Justice in the past had continued to allow naturalised Irish citizens (who were previously refugees) the right to make applications for family reunification, did not mean that this had to continue to happen. Humphreys J. held that there was no legitimate expectation, nor any unjustified discrimination in the Minister for Justice changing the approach to this issue. In coming to these decisions, Humprehey’s J relied on significant international legal authority, from international and EU law, in coming to this decision.
The Irish Refugee Council and the European Council on Refugees and Exiles will host a conference on Ireland’s opt-in to the recast EU Reception Conditions Directive (2013/32/EU) on Thursday, 22 March 2018. The conference programme and registration information can be found here.