Ireland - High Court, 13 December, J.K. (Uganda) v Minister for Justice and Equality, [2011] IEHC 473
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Sexual orientation
Description
"Sexual orientation refers to: ‘each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender’." According to Article 10(1)(d) of the Qualification Directive: “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this Article” |
Headnote:
The applicant was not permitted to raise a new ground of claim based on her asserted homosexuality, when she had had numerous opportunities to raise this ground of claim earlier. The applicant was however granted leave to apply for judicial review, upon the Judge noting a factual error that had tainted the State’s earlier credibility assessment.
Facts:
The Applicant unsuccessfully sought asylum in Ireland in 2006, on grounds of a fear of persecution based on her alleged involvement with a rebel group. In 2011 the applicant submitted a fresh claim for asylum based on new information: (i) the murder of her husband and child in Uganda; and (ii) the fact that she had recently had two homosexual relationships in Ireland. The government refused to accept her new claim for asylum and she applied for judicial review of that decision.
Decision & reasoning:
The Court outlined the test for re-entry into the asylum process in Ireland, as laid down in the case of EMS v Minister for Justice [2004] IEHC 398 (which itself followed the UK case of Onibiyo [1996] QB 768). That test can be paraphrased as whether “new elements or findings have arisen or been presented by the person which make it significantly more likely that the person will qualify for protection…and the person was incapable of presenting those elements or findings during his / her previous claim for asylum”.
The applicant placed emphasis on the fact that homosexuality is severely suppressed in Ugandan society and as a result she herself had suppressed her own homosexuality, which had been liberated once she came to Ireland, and then only gradually.
The Court held that the applicant’s previous failure to assert her sexual orientation, despite several opportunities, meant that she could not now advance this new claim –there was no satisfactory explanation for her failure to do so earlier, such as when her claim for subsidiary protection was submitted (during which time she had had legal advice, and had already been in two homosexual relationships).
On the second ground, after hearing argument and while drafting his judgment, the Judge noticed a factual mistake in respect of a key aspect of the documentation relied on by the State. The Judge re-opened the hearing, inviting comments from both sides, before making a finding that the government had made a critical mistake of fact on the paperwork, which it had erroneously held to damage the applicant’s credibility. Accordingly the Court held that the credibility assessment was flawed in this regard.
Outcome:
Leave to apply for judicial review was granted.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - R. v. Secretary of the State for the Home Department ex parte Onibiyo [1996] 2 All E.R. 901 |
| UK - SB (Uganda) v Home Secretary [2010] EWHC 338 (England and Wales) |
| Ireland - COI v Minister for Justice [2007] IEHC 180, [2008] 1 IR 208 |
| Ireland - Fakih v Minister for Justice [1993] 2 IR 406 |
| Ireland - R v Refugee Appeal Tribunal [2009] IEHC 353 |
Follower Cases:
| Follower Cases |
| Ireland - AO v The Refugee Appeals Tribunal, 27 February 2017 |