High Court: To justify return of woman to Nigeria because she could ‘sustain herself’ through prostitution egregiously offensive to human dignity

A woman who was refused international protection in the International Protection Appeals Tribunal, in a decision which stated that she “worked as a prostitute and managed to sustain herself”, has been granted an order of certiorari in the High Court.

Remitting the case back to the IPAT for fresh consideration, Mr Justice Max Barrett said “the notion that Ireland would countenance the return of any woman (here a woman who is the accepted victim of child sexual abuse) to any country, by reference, inter alia, to the fact that once there she could return to prostitution to sustain herself” was egregiously offensive to human dignity.

Tribunal decision

In April 2019, the International Protection Appeals Tribunal (IPAT) refused to grant international protection to the applicant, Ms I, a 27-year-old woman from Nigeria.

Ms I claimed international protection on two bases, that she:

  1. Had worked as a prostitute in Nigeria since she was a minor, and feared the reaction of her family if she returned or was to be returned to Nigeria;
  2. Was trafficked to Ireland and feared the response of the traffickers if returned to Nigeria.

The IPAT accepted that that Ms I worked as a prostitute in Nigeria and that she was disowned by her family because of her work as a prostitute; however, it did not accept that her family had attacked or targeted her.

Furthermore, the IPAT did not accept that Ms I was trafficked to Ireland or, therefore, that she faced any risk from traffickers if she were to be returned to Nigeria.

Failure to consider family as actors of persecution

In the High Court, Ms I challenged the IPAT decision on the basis that its assessment of future risk upon return failed to properly consider the issue of Ms I’s family as potential actors of persecution. In effect, Ms I argued that “the IPAT conflated two grounds and simply considered the position of former traffickers as the actors of persecution, yielding a situation in which there was an unlawful failure to consider future risk from extended family members as the actors of persecution”.

Considering Ms I’s written submissions to the IPAT, Mr Justice Barrett said it was clear that the core element of her claim was the risk from her family because of her work as a prostitute, and that a secondary element of her claim was the risk she faced from traffickers in Nigeria. Mr Justice Barrett said this was notable in circumstances where the IPAT and the Minister for Justice and Equality “alleged that Ms I did not allege a fear of persecution on the basis of being disowned by her family”.

Mr Justice Barrett said that, while this “may technically be correct, the court respectfully considers it clearly to be the case that Ms I specifically alleged a fear of her family on the basis that she had worked as a prostitute in Nigeria”.

Mr Justice Barrett was also satisfied that, in Ms I’s submissions quoting the Country of Origin Information provided to the IPAT, a clear separation between the alleged risk presenting from family and that presenting from traffickers was made throughout.

The State respondents maintained “that there was not a sufficient credibility finding made by the IPAT to trigger an obligation to assess family members as actors of persecution”.

Counsel for the State respondents argued that it was clear from the IPAT decision that the COI taken at its height supported the view that “even women who have been trafficked for sexual exploitation are unlikely to be at risk of reprisal on return to Nigeria”. Contending that this was not a conflation of the two arguments posed by Ms I, Counsel said the IPAT had found that Ms I would not face a risk of persecution even in circumstances where she had been disowned by her family. Further, it was submitted that there was no obligation to assess any risk from Ms I’s extended family as actors of persecution.”

Past persecution not required for risk assessment

Mr Justice Barrett said the “immediately difficulty” with the State’s argument was that “it would effectively require an applicant to have suffered past persecution or past serious harm before an obligation is triggered to assess the future risk”. Stating that this proposition was not supported by authority, Mr Justice Barrett added that it would “fly in the face of the statutory test” under Section 28(6) of the International Protection Act 2015, which states that in the assessment of facts and circumstances in an application for protection:

The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such serious harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”.

Noting that this imposes an obligation where there has been past persecution or serious harm, Mr Justice Barrett explained that it does not “dispose of the obligation to assess the claim put forward by an applicant”.

Furthermore, Mr Justice Barrett said that PD v The Minister for Justice, Equality and Law Reform & Ors [2015] IEHC 111 supported the proposition that where “an applicant advances a case of risk of persecution by reference solely to her work as a prostitute, a legal obligation arises to conduct a specific investigation into that claimed fear”. He said the most salient point in this regard was that in Ms I’s case, the forward-looking fear of persecution from family members “solely on the basis of Ms I’s having acted as a prostitute, was not addressed by the IPAT”.

Egregiously offensive to human dignity

Ms I contends, and the court accepts, that, in breach of the law as identified in DVTS v Minister for Justice, Equality and Law Reform & Anor [2008] 3 IR 476, the IPAT, although it did offer a reason why it preferred certain pieces of COI over the other, did not offer a valid reason.

This is so because what the IPAT in essence states when considering the COI is that because Ms I had “worked as a prostitute and managed to sustain herself” – through a period that included a portion of her childhood (so as a victim of child sexual abuse) – Ms I would be in a better position than some returnees to resettle, if she was to return to Nigeria.

Criticising the IPAT’s reasoning in this regard, Mr Justice Barrett said “[i]t is for Ms I to determine how she now chooses to live her life; however, the notion that Ireland would countenance the return of any woman (here a woman who is the accepted victim of child sexual abuse) to any country, by reference, inter alia, to the fact that once there she could return to prostitution to sustain herself is so egregiously offensive to the inherent and natural human dignity of women (and of men, were a sometime male prostitute to find himself similarly placed) that the IPAT’s reasoning in this regard cannot be permitted to, and, the court finds, does not have, any legal weight; hence the reason given for preferring certain COI is invalid”.

In response to the questions posed by Ms I in her application for judicial review, Mr Justice Barrett concluded that:

  1. The IPAT did not assess whether Ms I had a well-founded fear of being persecuted by her extended family;
  2. More specifically the IPAT did conflate this with its assessment of a well-founded fear of being persecuted on the basis of having been a victim of trafficking;
  3. The IPAT’s decision was unreasonable
  4. The IPAT did not provide adequate reasons for preferring certain Country of Origin Information from the UK Home Office, over other resources

Granting an order of certiorari, Mr Justice Barrett remitted the matter to the IPAT for fresh consideration.

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