Case summaries

There is not an internal armed conflict in Iraq. Also, the applicant has not shown that he is eligible for protection because of other severe conflict in the region.

The Minister for Justice issued a mother and her 5 children with deportation orders as failed asylum seekers pursuant to section 3(2)(f) of the (Irish) Immigration Act 1999. The only application for asylum was in the mother’s name. The children had not been issued with refugee status determinations at all and were not mentioned in the decision.  The minor applicants challenged the deportation orders on the basis that their designation as failed asylum seekers was wrong in law. They had never made asylum applications. The High Court granted the applicants leave to seek judicial review but later refused the substantive relief of orders of certiorari quashing the deportation orders on the basis that the mother’s application had covered the children. The applicants appealed to the Supreme Court as the Court deemed the issue a point of law of exceptional public importance. The Supreme Court set aside the High Court judgment and made an order of certiorari quashing the children’s deportation orders, finding that there was no record of any decision refusing asylum applications on behalf of the children. The Court held that such a refusal was a fundamental prerequisite to the Minister’s power to make a deportation order under section 3(2)(f) of the Immigration Act 1999.  Finnegan J. also held that where an application by a parent of a minor is unsuccessful, the child is entitled to apply for asylum based on his own circumstances and that where a child’s parents are successful, the child should benefit by virtue of the principle of family unity. The principle of family unity operates for the benefit of the minor and not against him.

Within the meaning of Section 8 of the Asylum Act, a particular social group is a group of people who share a common characteristic which is objectively given or is perceived as such by society. The characteristic in question usually has an innate, unchangeable form or is otherwise fundamental to human identity, conscience or the exercise of the human rights of the persons affected. 

It therefore usually comprises a group of people of similar social origin or status, social habits and customs, or of a similar sexual orientation, who are in a minority due to their otherness.

Currently every Sunnite and Shiite from Central and South Iraq is to be considered as a refugee within the meaning of Section 60 (1) Residence Act and the 1951 Refugee Convention, if he/she originates from a region with mixed denominations.

Returnees who originate from regions of mixed denominations cannot obtain internal protection in any part of Iraq.

No violation of Articles 3 of the Convention and Article 4 of Protocol 4 should the Applicant be removed to Afghanistan. This assessment was made in light of the personal circumstances of the Applicant and the overall context in Afghanistan.

The provisions of Article 29(1)(b) of the Legislative Decree of 25 July 1998, No 286, which allow reunification with adult children to take place under stricter conditions than those relating to underage children or dependent parents, are consistent with the Constitution.

The CALL ruled that for the recognition of subsidiary protection status (serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict), where doubt exists as to whether a person is a civilian or not, that person shall be considered to be a civilian.

The Council of State ruled that significant similarities between accounts that were being presented by different asylum seekers with the same nationality, ethnic origin and provenance, who applied for asylum in the same period of time, was certainly remarkable, even suspicious, but that this suspicion alone does not  suffice to establish fraud by the applicants.

The question as to whether or not an armed conflict existed has to be answered according to humanitarian law (common Art 3 of the Geneva Convention and the second additional protocol).

This case concerned the detention of children. It was held that the policy which permitted the detention of children in a family for a limited time (about 14 days) was lawful, longer detention of children was found to be unreasonable and therefore unlawful. The State also breached Art 8 of the European Convention on Human Rights of a detained child by not being proactive in assessing and preventing forseeable risk to his health.