High Court dismisses asylum claim where applicant already enjoys refugee status in Italy under Dublin Regulation.

Neutral Citation Number: [2009] IEHC 18

THE HIGH COURT

2008 114 JR

BETWEEN

S.Y. & R.Y. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND S.Y.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL & THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice McMahon delivered on the 13th day of January, 2009

The applicant arrived in Ireland in or about 9th October, 2006. Her date of birth is 16th November, 1983. Although

ethnically from Eritrea, she has lived all her life in Sudan, but was not entitled to citizenship in either Sudan or Eritrea. She

was a stateless person. She first came to Europe through Italy where she was recognised as a refugee in July, 2005. She

was lawfully admitted into Ireland on her Italian travel documents.

She applied for asylum in the State on her arrival on 9th October, 2006, and she duly completed the appropriate

application forms. She was interviewed on the following day by an officer from the Refugee Applications Commissioner’s

office when she informed him that she had got asylum in Italy and that she had left Italy to come to Ireland because she

could no longer live in Italy as the economic and social conditions were very difficult. She could find no work and had no

proper home. She felt very vulnerable in the social circumstances in which she found herself, particularly since she was

pregnant.

Initially, the Refugee Applications Commissioner (R.A.C.) refused her permission and attempted to transfer her claim to

Italy pursuant to the provisions of Council Regulation E.C./343/2003 of 18 February, 2003, establishing the criteria and

mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the

Member States by a third-country national, O.J.L 050/1 25.2.2003 (“the Dublin Regulation”). It subsequently transpired,

however, that this was an error and the Refugee Appeals Tribunal (R.A.T.) indicated then that they would not enforce the

transfer order made against her under that Regulation.

On 14th June, 2007, she received a further communication from the office of the Refugee Applications Commissioner which

conveyed the following decision to her. (The full letter is reproduced hereunder.)

“Dear Ms. Y.,

I refer to your applications for asylum to the Office of the Refugee Application Commissioner on 10/10.2006.

From an examination of the documents which you have produced in relation to your status it is noted that you were

granted asylum in Italy.

As you have not claimed to have a fear of persecution in that state and in accordance with Section 17(4) of the

Refugee Act, 1996, as amended, the Minister is precluded from giving a declaration that you are a refugee.

No purpose would be served by investigating your claim, accordingly your application is not being admitted for

processing.”

Shortly thereafter on 19th June, 2007, she received another letter, this time from the office of the Minister for Justice,

Equality and Law Reform which replied to her letter dated 18th May, 2007, wherein she had requested that the refugee

status granted to her in Italy should be transferred to Ireland.

“Dear Madam,

I am directed by the Tánaiste and Minister for Justice, Equality and Law Reform to acknowledge receipt of your

facsimile correspondence dated 18 May 2007 which has been forwarded to this Unit for attention.

Please note that there is no provision in Irish law which allows for the transference of refugee status granted in

another E.U. State to Ireland.”

On 5th February, 2008, leave to apply by way of application for judicial review was granted by Charleton J. for orders of

certiorari quashing the decision of the first named respondent (the R.A.C.) of 14th June, 2007 (reproduced above) and

the decision of the Minister, the second respondent, dated 19th June, 2007 (also reproduced above). The applicant also

sought on behalf of the second named applicant (her daughter was born while the first named applicant was living here) a

declaration that the latter is a citizen of Ireland as she was born in Ireland on 4th January, 2007. It is as a result of this

leave that the matter is now before this Court.

The main complaint of the applicant is that the R.A.C. cannot refuse to conduct an investigation mandated by the

Refugee Act 1996 in a pre-emptive way by concluding that such an investigation would be futile because, as the

applicant came to Ireland from Italy, the Minister at the end of the day did not have any statutory power to give her a

declaration of recognition as a refugee.

The applicant relies on the provisions of the Refugee Act 1996, to support her application and in particular relies on s. 11

of that Act, subs. 1 of which provides that when an application is received by the Commissioner under the relevant

section:-

“It shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether

the applicant is a person in respect of whom a declaration should be given.”

And further, where subs. 1 applies, subs. 2 provides that the Commissioner shall direct an authorised officer to interview

the applicant concerned and:-

“The officer or officers shall comply with any such direction and furnish a report in writing in relation to the

application concerned to the Commissioner.”

In addition to the statutory basis of the applicant’s claim she also relies on the principle of legitimate expectation.

Under the scheme of the Act it is envisaged that when the R.A.C. makes a report pursuant to s. 13 of the Act following

the investigation, the claim then goes to the second named respondent under s. 17 of the Act whose function it is to

make a declaration of status where appropriate. Section 17(4) provides:-

“The Minister shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva

Convention by a state other than the State and who has been granted asylum in that state and whose reason for

leaving or not returning to that state and for seeking a declaration in the State does not relate to a fear of

persecution in that state.”

The applicant maintains that such a conclusion can only be reached after a fair investigation of the claim by the

appropriate authorities, in this case the first named respondents (i.e. the R.A.C.).

The respondent on the other hand claims that because of the mandatory provisions of s. 17(4) which prohibits the

Minister from making a declaration in favour of a refugee where such a person has already been recognised as a refugee

under the Geneva Convention by another state (i.e. Italy in this case), is a futile exercise and cannot result in any relief

for the applicant.

The applicant maintains that before the Minister exercises his power under s. 17(4) the applicant should nevertheless be

given an opportunity to make her case and to refuse her this opportunity is to deny her fair procedures.

It is quite clear from the affidavits and from the evidence before the court that the applicant has not made out the case

that she has any fear of persecution if she is returned to Italy. On the contrary she has clearly stated in the

documentation that she has left Italy largely for economic reasons and because she has no suitable accommodation.

Moreover, notwithstanding the very clear indication from the Commissioner by letter on 14th June, 2007, which pointed

out to the applicant that there was no claim of a risk of persecution in Italy, she has not since put forward any factual

basis which would make s. 17(4) of the Act inapplicable in her case. This is an important point to bear in mind since such

a finding removes any room for factual dispute in relation to the “fear of persecution” issue. If a “fear of persecution” was

in issue then the applicant’s case would be much stronger. Absent this, however, the issue in s. 17(4) is a purely legal

one, bearing in mind again that it is common case that the applicant has been recognised as a refugee in Italy.

For this reason alone, and since the section is in no way ambiguous on the issue, the first named respondent is correct

when he says to conduct an interview in those circumstances would be a futile exercise. It is important to note that s.

17(4) does not give the Minister a discretion in the matter and the Commissioner’s decision is not one which usurps a

Ministerial discretion. If s. 17(4) gave the Minister a discretion then of course the Commissioner could not pre-empt the

Minister’s decision. This, however, is not the case here as can be clearly seen from the wording of the subsection.

Furthermore, it has been established that there is no mandatory obligation on the Commissioner to conduct an interview in

all cases: See Peart J. in Nwole v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 26th March,

2004) applying the decision of Smyth J. in Emekobum & Ors v. Minister for Justice, Equality and Law Reform (Unreported,

High Court, 18th July, 2002). This latter decision of Smyth J. was also approved by Finlay Geoghegan J. when granting

leave in the former proceedings: Nwole v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 31st

October, 2003). It is also worth noting that the Supreme Court, per Fennelly J., in the L.N. case also approved the

principle that there could be an umbrella application on behalf of a number of persons which would not necessitate

interviews in all cases: A.N. v. Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 18th October,

2007). The obligation which the applicant relies on in s. 11, from these authorities, indicates that the obligation in that

section does not impose an absolute duty in all cases. If the position were otherwise an application made under s. 8 to

the Commissioner by, say a United States citizen for recognition as a refugee which was unaccompanied by a claim of

persecution from his own State in any form would have to be entertained by the Commissioner even though he clearly

does not meet the basic threshold requirements set down in the legislation. It is significant to note also that no argument

is made on the legal interpretation advanced by the first named respondent in this connection. Were there a challenge to

the interpretation of the subsection, different considerations would apply.

Legitimate Expectation

The second named respondent has refused to consider the application of the first named applicant for the transfer of her

asylum status from Italy to Ireland.

The first named applicant herein asserts that she had a legitimate expectation that her case would be considered and

relies on a document entitled:-

“A study on the transfer of protection status in the EU, against the background of the common European asylum

system and the goal of the uniform status, valid throughout the Union, for those granted asylum.”

The report is compiled by several authors from the Danish Refugee Council, the Migration Policy Institute and the Institute

for Migration and Ethnic Studies. It appears to be a study of various countries and it was prepared for the Commission of

the European Communities. The relevant paragraph of the four paragraphs devoted to Ireland on which the applicant

relies reads as follows, at p. 104:-

“There is no specific legislation or guidelines concerning the examination of an application for transferable

responsibility. The responsible operational officers would therefore assess applications for transfer on a case by

case basis. An application for transfer has to be lodged with the Immigration Division of the Department of Justice,

Equality and Law Reform.”

The previous paragraph reads:-

“Convention status is the only refugee status granted in Ireland and so this would also apply when determining a

transferred case, should one arise.”

The report also notes that Ireland has no relevant experience in this matter or knowledge of any transfer of protection

cases in the jurisdiction to date. Moreover, the document also makes clear that Ireland is not a party to the European

Agreement on Transfer of Responsibility for Refugees 1980 and had not concluded any bilateral agreements on this

subject.

The origin and status of the report or the source of its information in Ireland is unspecified. The authors of the document

appear to be non-governmental organisations and it cannot be taken to be a document emanating from an official State

organ. It makes no reference to s. 17(4) of the Refugee Act 1996.

In Glencar Exploration v. Mayo County Council (No. 2) [2002] 1 I.R. 84, Fennelly J. at pp. 162 to 163 sets out the

essential elements involved in the concept of legitimate expectation:-

“In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to

me to be necessary to establish three matters… Firstly, the public authority must have made a statement or

adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an

identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or

conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially,

in such a way that it forms part of a transaction definitively entered into or a relationship between that person or

group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it

must be such as to create an expectation reasonably entertained by the person or group that the public authority

will abide by the representation to the extent that it would be unjust to permit the public authority to resile from

it.”

This statement was applied in Power v. Minister for Social and Family Affairs [2007] 1 I.R. 543 per MacMenamin J.

From the facts of this case it is my view that the representation relied upon by the applicant is not a promise or a

representation as to how the respondents would act in an asylum transfer situation. A full reading of the four paragraphs

dedicated to Ireland in the report would not lead a reasonable person to such a conclusion. Furthermore, it cannot be said

that it is a statement or a promise or representation which was made by or on behalf of the respondents. The

respondents in an affidavit have stated that they have failed to locate within the public service the person who is alleged

to have provided the information to the authors. Moreover, it is quite clear from the affidavits that the applicant has not

relied or acted on the face of any such representation when she first came to this country. All her earlier affidavits

emphasised the fact that she came to Ireland because the economic and social conditions which she found herself in in

Italy were unsatisfactory and made her feel “vulnerable”. That was the basis of her application and nowhere has she

averred that she relied on the statement contained in the report as providing her with encouragement to travel to Ireland.

By no stretch of the imagination could it be suggested that anything in the report of third parties, unrelated to the State,

created an expectation on the part of the applicant. In the circumstances there can be no question of doing an injustice

to the applicant. The State cannot resile from something it never represented in the first place. Finally, since the

Government did not ratify the 1980 agreement which appears to have been the focus of the Danish Refugee Council

Report, the Minister could not be taken to have undertaken in any way to honour any of the provisions of that

agreement. Additionally, without giving evidence of any steps taken in reliance on the so called representation in the

report, the first named applicant could not argue that there was a specific reliance on her part to amount to an injustice

in the case (see Power v. Minister for Social and Family Affairs [2007] 1 I.R. 543).

Finally, it is clear from the jurisprudence that the doctrine of legitimate expectation may only secure a benefit for an

applicant where it would not otherwise be unlawful to do so. (See Abrahamson v. Law Society of Ireland [1996] 1 I.R.

403, approved by MacMenamin J. in Power supra). In the present case s. 17(4) of the Refugee Act 1996 precludes the

Minister from granting refugee status to the first named applicant since she already enjoys that status in Italy. The

Minister has no discretion in the matter.

Citizenship of the Second Named Applicant

Section 6(3) of the Irish Nationality and Citizenship Act 1956, as amended by section 3(1) of the Irish Nationality and

Citizenship Act 2001, provides:-

“A person born in the island of Ireland is an Irish citizen from birth if he or she is not entitled to citizenship of any

other country.”

Section 28 of the same Act provides that any person who claims to be an Irish citizen may apply for a certificate of

nationality. This is clearly the procedure specified in the 1956 Act for a person who wishes to have a certificate of

nationality. Because the second named applicant has not availed of this procedure her claim for a declaration in these

proceedings is not appropriate in the circumstances. In any event the first named applicant has not shown in evidence

the fact that she is not entitled to citizenship of any other country as required by s. 6(3) of the 1956 Act. For these

reasons the relief sought by the second named applicant will not be granted in these judicial review proceedings.