High Court: Woman who claimed she would face inhuman and degrading treatment in Algeria loses application for judicial review

High Court
High Court

A woman who was refused refugee status and declared ineligible for subsidiary protection has lost an application for judicial review of an International Protection Appeals Tribunal decisionFinding that the risk of prosecution for “irregular exit” from Algeria did not amount to inhuman and degrading treatment or punishment, Mr Justice David Keane also agreed with the IPAT that there wasn’t a risk of indiscriminate violence in Algeria putting her at risk of serious harm.


ES was born in Algeria in 1987. She left Algeria on 2 July 2014 and arrived at an unknown port in Ireland ten days later. On 24 July, she presented at the Office of the Refugee Applications Commissioner to apply for refugee status, claiming a well-founded fear of persecution on grounds of religion and membership of a particular social group if returned to Algeria.

On 8 October 2014, the Refugee Applications Commissioner made a recommendation that ES not be recognised as a refugee on the basis that she failed to establish her fear was objectively well-founded or that effective state protection would not be available to her. In July 2015, the Refugee Appeals Tribunal affirmed that recommendation.

Thereafter ES applied under the European Union (Subsidiary Protection) Regulations 2013 for subsidiary protection. In accordance with Regulation 5(3), ES was interviewed on behalf of the Commissioner. The subsidiary protection report dated 20 October 2015 concluded that ES failed to establish the credibility of her claims or substantial grounds for believing that she would face a real risk of suffering serious harm if returned to Algeria.

ES appealed, and on 12 October 2016, under Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013, the Tribunal affirmed the decision that ES should not be declared eligible for subsidiary protection.

In November 2016, Mr Justice Colm Mac Eochaidh granted ES leave to apply for various reliefs, principal among which are an order of certiorari quashing the October 2016 decision and an injunction restraining the Minister for Justice and Equality from taking any further steps on ES’s international protection claim.

When s.71(5) of the International Protection Act 2015 came into force on 31 December 2016, the International Protection Appeals Tribunal replaced the Refugee Appeals Tribunal in these proceedings.

High Court

At the outset of his judgment, Mr Justice Keane commented that this was “yet another case in which Ireland and the Attorney General have been made respondents to the application, although no relief is sought against either of those juristic persons, nor is any issue raised in which either of them has a direct interest as a matter of law, suggesting the indiscriminate use of scissors and paste pot that is so much a feature of the immigration and asylum list”.

ES contended that the IPAT decision was unlawful in finding:

  1.          that there were no substantial grounds to believe that she was at real risk of serious harm in the form of the risk of prosecution, conviction and sentence in Algeria for the offence of leaving that country without an exit visa, amounting to inhuman or degrading treatment or punishment – falling within the definition of serious harm under Regulation 2(1) of the 2013 Regulations, transposing Art. 15(b) of Council Directive 2004/83/EC
  1.          that there was not a situation of ‘internal armed conflict’ in Algeria, as that term is used as part of the wider phrase ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict’, falling within the definition of serious harm under Reg. 2(1) of the 2013 Regulations

Risk of inhuman and degrading treatment or punishment

Considering the risk of inhuman and degrading treatment or punishment for illegal exit from Algeria, the IPAT had considered country of origin information which included information on Algeria amending its penal code in 2009 to add the offence of “irregular exit from its territory”, carrying a penalty of two to six months in prison, a fine, or both.

The IPAT noted that the law in relation to irregular exit appeared to be used most stringently against people with links to terrorist groups. The IPAT distinguished the case from a previous case (1545424-ASAP-12) involving a minor who was born in Ireland but whose parents had been refused asylum. Taking ES’s personal information into account, the IPAT found that the application of the law in Algeria did not amount to inhuman and degrading treatment or punishment.

In the High Court, Mr Justice Keane considered the same COI documents and said that ES sought to rely on cases dealing with the potential torture or ill treatment of persons convicted, or suspected, of terrorist offences in Algeria. Rejecting this first ground, he said ES failed to identify any general or specific COI that the tribunal did not consider, and was satisfied that the tribunal provided a reasonable explanation for coming to a different decision to 1545424-ASAP-12.

Risk of indiscriminate violence

The IPAT had said it was clear there were terrorist groupings in Algeria launching random attacks on civilians, but that Algeria was not in a situation of internal armed conflict. Furthermore, ES was from Algiers, and there was no evidence of a risk of indiscriminate violence putting ES at risk of serious harm.

Mr Justice Keane said there was no doubt that it was not possible to make eligibility for subsidiary protection “conditional upon a finding that the conditions for applying international humanitarian law have been met”. Considering cases C-465/07 (Elgafaji v Staatssecretaris van Justitie) C-285/12 (Diakité v Commissaire général aux réfugiés et aux apatrides), Mr Justice Keane said it was possible that a lower level of indiscriminate violence could warrant eligibility for subsidiary protection. However, Mr Justice Keane said there was nothing to suggest that the IPAT failed to apply the correct test.

Rejecting this second ground, Mr Justice Keane refused ES’s application for judicial review.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019

Other judgments by Mr Justice David Keane