Supreme Court: Minister’s decision to make deportation order did not adequately consider risk of torture

About this case:

• Judgment:
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The minister had found that deportation would not constitute a violation pursuant to Article 3 of the European Convention of Human Rights, however the Supreme Court found that the reasoning for this decision was inadequate and remitted the matter of revoking the deportation order to the Minister for reconsideration.

Background

In 1996 and 1997, YY, an Algerian national, was convicted in absentia of terrorism related offences in Algeria, including forming an armed terrorist group intending to spread murder and sabotage, forethought deliberate murder, attempted assignation, arson and theft.

He was sentenced to three life sentences and two death sentences – however Justice O’Donnell explained that Algeria has not carried out an execution in over twenty years, and therefore is regarded to be in practice abolitionist.

YY arrived in Ireland in July 1997, and applied for asylum under a false identity and false documents.

His claim for asylum was refused by the Refugee Applications Commissioner. However, he successfully appealed this decision to the Refugee Appeals Tribunal which in the words of the High Court judge “was taken in by his falsehoods”, and he was granted refugee status in April 2000.

He was also granted travel documentation later that year on 10th October 2000, which as it happened allowed him to leave Ireland to commit multiple offences abroad.

Justice O’Donnell described YY as “someone who poses a threat to the security of this state and others”.

Nevertheless, it is said that his deportation to Algeria is precluded by the obligations of this state in international law, now implemented in national law.

In 2006, the Tribunal de Grande Instance de Paris convicted YY of multiple terror offences, in addition to identity fraud. YY was released from prison in 2009, and was refused asylum in France.

In response to YY’s failed attempt to apply for refugee status in France, the Irish authorities initiated proceedings in February 2009, to revoke YY’s refugee status in Ireland. However, YY somehow left France and re-entered Ireland unlawfully at some point during 2009.

The Minister for Justice and Equality proceeded to revoke the declaration of refugee status in August 2011, on the basis that YY had provide materially false and misleading information to the Irish asylum authorities.

YY subsequently filed applications for permission to re-enter the asylum process (section 17(7) of the Refugee Act, 1996, leave to remain (section 3 of the Immigration Act, 1999), and subsidiary protection (Directive 2004/83/EC). Each of these applications were considered and refused by the Minister.

Application for Subsidiary Protection

YY applied for subsidiary protection in September 2014. In the application, reference was made to certain articles and country of origin information which it was asserted established the risk of “serious harm” if returned to Algeria.

A person is entitled to subsidiary protection if, not being a refugee, there is a risk of serious harm if returned to his or her country of origin (Regulation 2, European Union (Subsidiary Protection) Regulations 2013 (S.I.426 of 2013) implementing in this regard Council Directive 2004/83/EC).

Serious harm is defined in the regulations as “the death penalty or execution, torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or 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.”

This definition is closely related to the provisions of Article 3 of the European Convention on Human Rights which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

the core allegation in YY’s case was that he would be subjected to torture or inhuman or degrading treatment.

Ultimately, the Minister found that YY’s deportation would not constitute a violation of his rights pursuant to Article 3 of the European Convention of Human Rights – and consequently made an order to deport YY in September 2016.

In March 2017, by order of the High Court, Justice Humphreys dismissed YY’s challenge to:

Supreme Court

In delivering the unanimous decision of the five-judge Supreme Court, Mr Justice Donal O’Donnell explained that this case presented “in a stark way, the difficulties created when it is sought to deport an individual who is considered a threat to the security of this state and others but who contends that he will be subjected to treatment contrary to Article 3 of the European Convention of Human Rights if returned to his country of origin, which in such circumstances is the only country to which he or she can realistically be returned”.

In all the circumstances, Justice O’Donnell was not satisfied that the reasons provided by the Minister were adequate to support the decision to deport.

It was not sufficiently clear why the Minister concluded that YY could be deported to Algeria without a real risk of torture, or inhuman or degrading treatment, and why the Minister considered that such a decision ought not to be revoked. As such, Justice O’Donnell said that he could not have the level of assurance necessary that the decision set out a clear reasoned path, and moreover one that was not flawed or incorrectly constrained by unjustifiable limitations or irrelevant legal considerations.

Accordingly, the Court held that the matter of revoking YY’s deportation order must be remitted to the Minister for further consideration.