Izevbekhai and Ors v Ireland

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Respondent/Defendant:Ireland
Court/s:ECJ
Citation/s:Application No. 43408/08
Nature of Proceedings:Admissibility
Judgment Date/s:17 May 2011
Judge:Fifth Section
Category:Deportation
Keywords:Deportation, Deportation Order, Refoulement, Refoulement (Non-)
Country of Origin:Nigeria
URL:http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-105081#{%22itemid%22:[%22001-105081%22]}
Geographic Focus:Europe
References:Izevbekhai and Ors v. Minister for Justice, Equality and Law Reform and Ors [2010] IESC 44; E.P.I. and Ors v. Minister for Justice, Equality and Law Reform [2008] IEHC 23; Izevbekhai and Ors v. Minister for Justice, Equality and Law Reform and Ors, 10 November 2006

The Applicants were a mother and two daughters who arrived in Ireland in January 2005. Mrs. Izevbekhai applied for declarations of refugee status on her own behalf and on behalf of her daughters. The basis of her claim for refugee status was that she was in fear for her own life and the lives of her daughters if they were returned to Nigeria, as a result of threats from the family of her husband to carry out female genital mutilation on her daughters. She claimed that an elder daughter had died in Nigeria as a result of complications arising from female genital mutilation. The Applicants’ applications for refugee status in Ireland were refused, and they made representations to the Minister for leave to remain temporarily in the State. These representations were rejected and the Minister made deportation orders in respect of all three Applicants in November 2005. Mrs. Izevbekhai went into hiding and her children were taken into care by the HSE. She was later apprehended by Gardaí and placed in detention. The Applicants obtained the leave of the High Court (McKechnie J.) to challenge the deportation orders by way of judicial review but the substantive applications were refused by the High Court (Feeney J.) in January 2008. In March 2008, the Applicants made applications to the Minister for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations (S.I. No. 518) 2006. The Minister refused to consider their applications for subsidiary protection because the deportation orders had been made before the coming into force of the Regulations. In an earlier case (N.H and T.D. v. Minister for Justice and Law Reform [2007] IEHC 277) the courts had identified a discretion on the part of the Minister to accept such late applications, but the Minister refused to exercise this discretion in favour of the Applicants. In March 2008 the High Court (Edwards J.) granted to the Applicants leave to apply for judicial review of the Minister’s decision. In January 2009, the High Court (McGovern J.) delivered judgment on the substantive application for judicial review, and held that the Minister had acted properly. The Applicants appealed this decision to the Supreme Court.

In the meantime, the Minister’s officials reopened their investigations into Ms Izevbekhai’s claims about the death of her eldest daughter in Nigeria. The Minister concluded that the documents relied upon by Ms Izevbekhai in support of her claim were forgeries and that no such child had ever existed. Affidavits to this effect were filed in the Supreme Court.

Following the hearing on the preliminary issue of whether the Minister had jurisdiction to entertain the application for subsidiary protection, the Supreme Court found that he had no discretion to do so. Consequently, the substantive appeal did not proceed and thus no findings were made by the Supreme Court as regards the Minister’s allegations of forgery.

The Applicants took their case to the ECHR and complained under Article 3 that there was a real risk that the minor Applicants would be exposed to FGM if they were expelled to Nigeria. They also invoked Articles 6, 13 and 14 of the Convention about the domestic remedies available to them in that respect. The ECHR found that the information presented by the Government with respect to the documents relied upon by Ms Izevbekhai gave strong reasons to question the veracity of the Applicants’ core factual submission concerning the death of a child in Nigeria as a result of FGM. The Court considered the Applicants’ response to the core issue of credibility to be unsatisfactory.

Having considered country of origin information with respect to the incidence of FGM in Nigeria and the particular circumstances of the Applicants, the Court held that Ms Izevbekhai and her husband could protect their daughters from FGM if returned to Nigeria. The Court therefore found that the Applicants had failed to substantiate that Ms Izevbekhai’s daughters would face a real and concrete risk of treatment contrary to Article 3 of the Convention upon return to Nigeria. The Court concluded that their complaint was therefore manifestly ill-founded and therefore inadmissible. With respect to the Applicants’ complaint invoking Articles 6, 14 and 13, the Court noted that it was well-established in its case-law that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations, or of a criminal charge, within the meaning of Article 6 § 1 of the Convention. The complaint under Article 6 was therefore dismissed as being incompatible ratione materiae with the provisions of the Convention. The Court also stated that their claim that the domestic procedures set up to examine immigration issues were inadequate was not, in itself, demonstrative of a discriminatory difference in treatment within the meaning of Article 14 of the Convention. Finally, the Court recalled that Article 13 requires a remedy in domestic law only in respect of an arguable claim of a violation of the Convention and held that, having regard to the Court’s conclusions with respect to their complaints under Articles 3, 6 and 14, the Applicants’ complaint under Article 13 could not be sustained.

Principles:

Ms Izevbekhai and her husband could protect their daughters from female genital mutilation if returned to Nigeria.

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