The applicant was an Algerian national who was granted refugee status in Ireland on 15 July 1997 on the basis of false documentation. He was granted travel documentation on 10 October 2000, which allowed him to leave Ireland and commit multiple offences abroad. The applicant was convicted of a number of terrorism related offences in France and sentenced to eight years’ imprisonment. He applied for asylum in France in January 2009 prior to his release from custody and this application was refused. In response to the applicant’s failed attempt to apply for refugee status in France, the Irish authorities initiated proceedings on 10 February 2009, to revoke the applicant’s refugee status in Ireland. The applicant re-entered Ireland unlawfully at some point during 2009. The Minister revoked the declaration of refugee status on 5 August 2011 on the basis that the applicant had provided materially false and misleading information to the Irish asylum authorities.
The applicant filed applications for permission to re-enter the asylum process (s.17(7) of the Refugee Act 1996), leave to remain (s.3 of the Immigration Act 1999), and subsidiary protection (Directive 2004/83/EC). Each of these applications were considered and refused by the Minister.The applicant commenced judicial review proceedings in the High Court challenging the s.3(1) deportation decision, which that court dealt with by way of a telescoped hearing on 26 October 2016. The matter was adjourned to allow the applicant to make an application under s.3(11) of the 1999 Act for revocation of the deportation order. The s.3(11) application was made on 22 November 2016. This s. 3(11) application was refused by the Minister on 6 December 2016. On 13 December 2016, the High Court (Humphreys J.) granted the applicant leave to amend the statement of grounds in order to challenge the s.3(11) decision.
The High Court (Humphreys J.) subsequently dismissed the applicant’s challenge to both the s.3(1) and s. 3(11) decisions ( IEHC 176). The High Court (Humphreys J.) refused leave to appeal on all grounds of appeal ( IEHC 185) and refused the applicant a stay on deportation pending an application for leave to appeal to the Supreme Court ( IEHC 334).
The applicant sought leave to appeal directly to the Supreme Court pursuant to Article 34.5.4º of the Constitution. The Supreme Court accepted that as the law stands, a party may apply to appeal directly to that court under Article 34.5.4º, notwithstanding the refusal by the High Court of a leave to appeal to the Court of Appeal. The Supreme Court granted leave on the following grounds:
(i) Where a Minister orders deportation of an individual and relies on country of origin material which is generally available to conclude that return of an applicant to a country would not be a breach of s.5 of the Refugee Act 1996, and/or that there are no substantial grounds for considering that there is a real risk that the applicant will be subjected to treatment contrary to Article 3 of the Convention, is the Minister required to notify the applicant of the said material and invite submissions upon it?;
(ii) If the Minister is under such an obligation, is it satisfied, or otherwise affected, by the fact that an applicant was provided with the reasons for the making of a deportation order, including the reference to the said material, and is entitled to apply for a revocation of that order (and did so)?;
(iii) Given that in comparable cases the ECtHR or other reputable national immigration authorities, or in the particular case, the Refugee Appeals Tribunal, have made findings that there is a real risk on substantial grounds, if a person in a comparable circumstance [to] the applicant in this case are returned to Country X that they will suffer a treatment which is a breach of Article 3 of the Convention, did the reasons provided by the Minister for (i) making the deportation order under s.3(1) and (ii), refusing to revoke the deportation order under s.3(11) of the 1999 Act, provide a sufficient lawful basis for the said decision? ( IESCDET 38)
The Supreme Court held that the Minister is obliged to consider the principle of non-refoulement under s.5 of the Refugee Act 1996, as informed by the case law of the European Court of Human Rights in respect of article 3 of the European Convention on Human Rights, when deciding whether an individual can be deported under s.3 of the Immigration Act 1999. The test to be applied was whether there were substantial grounds for believing that there was a real risk of torture or inhuman or degrading treatment, and if so a person could not be surrendered, deported or expelled to such a country.
The Supreme Court confirmed that the guarantee under article 3 was absolute and applied in all circumstances. Accordingly, although the consequence of refusing deportation or expulsion was that the applicant would remain within the contracting state, it was irrelevant that there might be compelling national security reasons for expulsion from the state. When the Minister was considering a deportation decision where it was alleged that there were substantial grounds for considering that there was a real risk of torture or inhuman or degrading treatment, that was not a matter of discretion or indulgence: if the Minister were to conclude that there was such a risk, then he would be obliged by national law implementing the European Convention on Human Rights, and by the Convention itself as a matter of the State’s international obligations, not to deport the person. The court accepted that there was a negative right to resist deportation at least to a particular country, which in most cases was the only country who would accept or could be obliged to accept the person.
O’Donnell J. held that it was critically important that the decision maker apply that test in a searching way with real care and rigour. While the court accepted that the Minister was not required to notify the applicant of any mainstream country of origin information relied on in the decision, obscure material that was going to materially change the picture appearing from the basic and universal material should however be notified. Unless the country of origin material considered was in some respect unusual, there was no obligation on the Minister to confine himself to the country of origin information submitted by the applicant, or to notify the applicant of any additional country of origin information of the same general nature considered by the Minister. The Minister was obliged by law to be aware of up-to-date information in respect of a country. The fact that there was a procedure for applying for revocation of a deportation order under s. 3(11) of the 1999 Act, was itself a useful safeguard against the possibility that the M had relied on information, or an interpretation of existing information, which had genuinely taken the applicant by surprise. While the line between mainstream country of origin information and unusual material might be difficult to draw in some cases, the section 3(11) procedure provided an opportunity to make submissions on any material that was included in the ministerial decision to deport.
The court also held that the Minister was incorrect to maintain that as some case law relied upon by the applicant in his application to have the deportation order revoked under s.3(11) of the 1999 Act was available at the time of the original deportation decision and could have been advanced at that point, it did not have to be considered at the s. 3(11) stage. O’Donnell J. noted that these were legal decisions, albeit relied on in part for their factual content. They went directly to the article 3 issue, which the Minister was obliged to consider at both the deportation stage and the s.3(11) stage, and on the basis of the information then available.