High Court: Minister must reconsider deportation order in accordance with Articles 2 and 3 ECHR
In the High Court, an asylum-seeker from Pakistan was granted an order of certiorari, quashing the Minister for Justice and Equality’s decision to affirm his deportation order. The Court found that the Minister had failed to take into consideration the likeliness of the applicant facing both torture and the death penalty upon his return to Pakistan, and therefore had to reconsider the application in accordance with Articles 2 and 3 ECHR.
M.Y, a national of Pakistan, arrived in Ireland in July 2008 and applied for asylum, stating fears arising as a result of the consequences of killing a man in self-defence.
According to M.Y., the circumstances that gave rise to the killing were as follows: M.Y. was engaged to carry out maintenance works at the deceased’s house. Shortly afterwards the house was burgled for which blame was placed on M.Y. The police were satisfied that M.Y. was not responsible, but the deceased and his family continued to blame him and he was twice attacked. The killing occurred in the course of the second attack when the deceased and another individual set upon M.Y., leading to M.Y fleeing his home.
A cousin of the deceased filed a First Information Report (FIR) with the police, which was related to a breach of s. 302 of the Pakistani Penal Code – the penalties for which include the death penalty.
According to M.Y., his family were subjected to attack as a result of these events, with his father imprisoned for six months and only released when he disinherited M.Y.
The Office of the Refugee Applications Commissioner recommended that M.Y. not be declared a refugee as it determined “the applicant’s claim amounts to a fear of prosecution, and not of persecution”. On appeal to the Refugee Appeals Tribunal, the same outcome was reached and M.Y. was reused asylum.
Thereafter, M.Y. applied for subsidiary protection and leave to remain – these applications were refused and a deportation order was made in August 2012.
Judicial review proceedings were instituted in respect of that deportation decision.
In the hearing before the High Court in September 2013, counsel for M.Y argued that the Minister had no lawful authority to deport M.Y. in circumstances where penalties included the death penalty. Justice Clark found merit in M.Y.’s submission which had never been made to the Minister – consequently, Justice Clark directed the Minister to consider a revocation application under s. 3(11) of the Immigration Act 1999 on the basis of a claim that M.Y. could face the death penalty if returned to Pakistan.
It was also submitted that the Minister should have due regard to the application of law in Pakistan and that M.Y. may face pre-trial arrest, detention and torture if returned to his country of origin.
On 29th October 2015, M.Y. was informed that the deportation order made in August 2012 had been affirmed by the Minister.
Judicial review of the 29th October 2015 decision
Counsel for M.Y submitted seven grounds of challenge before Justice Faherty, including:
“When affirming the deportation order in respect of the applicant, the Minister erred in law and/or acted irrationally:
Failing to apply the correct test applicable in determining whether it would be lawful to deport the applicant to Pakistan – the Minister failed to consider whether there were substantial grounds for believing that there is real risk that the applicant would be subjected to torture, inhuman or degrading punishment and/or the death penalty on his return to Pakistan;
Failing to consider that the applicant’s exposure to the death penalty is in breach of Article 3 and/or the sixth protocol of the European Convention on Human Rights;
Failing to consider evidence tendered in relation to the prospect of the death penalty and in relation to a fair trial;
Failing to make an adequately or clearly reasoned decision and in particular failing to deal with the evidence and failing to make clear whether it was considered or determined that the applicant’s exposure to the death penalty was obviated by access to a fair trial and inefficiencies occurring between police districts;
Determining that the applicant’s exposure to the death penalty was obviated by findings in respect of access to a fair trial and legal representation and inefficiencies occurring between police districts”.
Justice Faherty stated that if the Minister “finds substantial grounds are established of a real risk to M.Y. of being subjected to the death penalty should he be returned to Pakistan, he cannot be returned to that country as such a return would be in breach of Articles 2 and 3 ECHR, and contrary to Protocol 13 to the Convention which abolished the death penalty in all circumstances”.
Furthermore, the “absolute prohibition on refoulement in such circumstances and the duties of a returning State is comprehensively set out in the decision of the EctHR in Al-Saadoon v. U.K. (2010) 51 EHRR 9”.
Justice Faherty stated that she was not persuaded by arguments advanced on behalf of the Minister – the “fundamental flaw” in the decision was that by embarking upon a “consideration of the possibility of M.Y. being prosecuted within a criminal justice system which provides for the death penalty”, the Minister was “obliged to consider whether substantial grounds of a real risk of exposure to the death penalty had been established”.
It was not sufficient for the Minister to content herself with the fact that M.Y. would get a fair trial and have access to legal representation.
As a result, the conclusion arrived at in respect of M.Y. “could not be considered rational in the absence of further elaboration by the Minister as to why it was considered unnecessary to pursue the likely consequences for M.Y. were he to be convicted”.
The High Court granted an order of certiorari quashing the decision of the Minister dated 29th October 2015, remitting the matter to be determined by the Minister in accordance with the applicable legal principles.