Case summaries

This case concerned subsequent applications for asylum. The CALL ruled that the principle of res judicata (matter already judged) is not applicable in a case where the subsequent application is not based on the same set of facts as the earlier application.

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.

Traumatised people and those who have suffered otherwise psychologically and physically from flight behave differently when giving evidence compared with healthy people. This can mean that the full submissions relevant to asylum are not provided at the start of the proceedings or the traumatisation itself is not mentioned. These circumstances are to be taken into account during the ban on new evidence.

The provisions regarding the establishment and operation of Refugee Centres do not constitute a basis for ordering foreigners to stay in the said Centres, under penalty of having the asylum application procedure halted, on the sole ground that the police authorities consider their applications for asylum to be manifestly unfounded. The Refugee Centres were not established as centres where foreigners would be obliged to live – under penalty of halting the process of examining their applications for leave to remain – until the process had been completed, if those foreigners wish to and are able to stay elsewhere during the procedure, unless the Administration states that the measure is necessary for a specific and fully justified reason of public interest.

Within the meaning of the provisions of Article 2(1) and Article 3 para. 1, 4, 5, 7 and 8 of Presidential Decree 61/1999, for an appeal brought against an initial negative decision to be rejected for being out of time, there is no requirement for there to have been a prior judgment by the Committee formed under Article 3(5) which – as is clear from the regulations concerning its composition and operation – is responsible for considering the substantive conditions for recognising refugee status to a foreigner.

The court overturned a previous judgment which had held that a policy of refusing to tape record substantive asylum interviews was legal.

If any fact emerges during the interview, which indicates that the applicant could be persecuted for exercising his political rights and freedoms, or has a well-founded fear of being persecuted on the grounds upon which asylum can be granted, the Ministry of Interior obliged to conduct the interview in a way that would achieve an outcome which is sufficiently clear for the needs of considering the asylum claim. It is also necessary to evaluate the way in which state power is exercised in the country of origin, and the real possibility of exercising one’s political rights and other circumstances that could establish grounds for international protection.

This case considered of the support available for asylum seekers. It was held that the system in place was not procedurally fair and that Art 3 of European Convention on Human Rights (ECHR) was engaged. Judicial review of the refusal was not an adequate remedy for refusal of support where the administrative procedure was unfair and inadequate.