MAH v Minister for Justice

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Respondent/Defendant:Minister for Justice
Court/s:High Court
Citation/s:[2021] IEHC 302
Nature of Proceedings:Judicial Review
Judgment Date/s:30 Apr 2021
Judge:Burns T
Keywords:Asylum, Country of Origin Information, Deportation Order, European Convention on Human Rights (ECHR), Refoulement (Non-), Refugee
Country of Origin:Somalia

Facts: The applicant was a Somali national who had studied medicine in Ukraine. Upon completion of her studies, she returned to Somalia where she worked as a junior doctor. During this time, the applicant was subjected to threats from a fundamentalist group and so she fled to Ukraine through renewing her student visa. Upon the expiry of her student visa, she applied for asylum in Hungary and was granted refugee status. However, the applicant was homeless in Hungary, and was unable to obtain work. She was physically assaulted by a man and feared being sexually assaulted by others. She also experienced constant racist abuse.

In February 2016, the applicant left Hungary and applied for international protection in Ireland. This application was found to be inadmissible because she held refugee status in another EU Member State. A proposal to deport was issued under section 3 of the Immigration Act 1999, as amended. The applicant made representations in response, including references from academics and medical personnel, as well as a medico-legal report detailing that she had been diagnosed with a major depressive disorder and there was a risk of her mental and physical state deteriorating significantly. In February 2020, the applicant was informed that a deportation order to Ukraine was issued against her. The applicant brought judicial review proceedings seeking to have the deportation order quashed.

Reasoning: The High Court first examined the Minister for Justice’s assessment that returning the applicant to Hungary was not contrary to the principle of non-refoulement set out under section 3A of the Immigration Act 1999. The High Court held that the Minister for Justice had erroneously dismissed Country of Origin (COI) materials on the treatment of migrants and refugees in Hungary. It was held that the Minister failed to undertake an  assessment of whether the presumption that Hungary upheld fundamental rights had been rebutted, despite the submissions of the applicant and the information available to the Minister.

With regard to the consideration of the applicant’s employment prospects under section 3(6)(f) of the Immigration Act 1999, the Minister for Justice’s decision recognised that the applicant would easily take up employment as a qualified medical doctor in Ireland but found that this was undermined by the fact that the applicant did not hold a valid immigration permission. The High Court held that this reasoning was inappropriate because the assessment of the employment prospects of a proposed deportee under section 3(6)(f) of the 1999 Act necessarily only arises where a person does not hold a valid immigration permission.  The High Court recalled that section 3(6) requires the Minister to consider each sub-heading on a standalone basis and to then engage in a balancing act in determining whether a deportation order should be issued.

With regard to the final argument submitted by the applicant, concerning her rights under Article 8 of the European Convention of Human Rights, the High Court recalled that the applicant, as a holder of precarious immigration status, was not entitled to a proportionality assessment under Article 8 ECHR in the absence of exceptional circumstances.

Decision: The High Court held that the Minister for Justice’s decision to make a deportation order in respect of the applicant was vitiated by the errors made in assessing the applicant’s case and accordingly quashed the deportation order..

Principles:In making a deportation order, the Minister for Justice was obliged to consider whether country of origin information was capable of rebutting of the presumption that another Member State upholds fundamental rights. The Minister for Justice was not entitled to dismiss an applicant’ s employment prospects on the basis that she did not hold a work permit or immigration permission.
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