Anisimova v. Minister for Justice [1997] IEHC 29; [1998] 1 IR 186 (18th February, 1997)

Judgment of Justice Morris delivered on the 18th day of February 1997. 1. This matter comes before the Court by way of an application for Judicial Review. The Applicant seeks:- (a) An Order of Mandamus directing the Respondent to consider the application of the Applicant for refugee status as defined in accordance with the United Nations Convention on the Status of Refugees of 1951 as amended by the Protocol on the Status of Refugees of 1967. (b) A declaration that the Applicant is entitled to have her application for refugee status determined in accordance with the agreement on procedures agreed between the Respondent and the United Nation High Commissioners for Refugees as set out in a letter dated the 13th December, 1986 from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr. Von Arnim, United Nations High Commissioner for Refugees, Representative. (c) An injunction restraining the Respondent from making a Deportation Order or from removing the Applicant from the jurisdiction until her application has been considered in accordance with the agreed procedures. 2. The facts of the case are as follows. The Applicant is a Russian national from Maldova. She arrived in Ireland from the United Kingdom on the 22nd February, 1996. When she left Maldova, it was her intentions at all times to come straight to Ireland but she was only able to obtain an entry visa for the United Kingdom. On arrival at Heathrow Airport, London she immediately proceeded by way of public transport to the Ferry Terminal at Holyhead where she took a ferry to Dublin. She spent less than 24 hours on United Kingdom soil while she was on transit to Ireland. On arrival in Dublin she made contact with the Irish Refugee Council and she and her daughter were placed in a bed and breakfast accommodation in Dublin and remained there from her arrival on the 22nd February, 1996 to the 13th March, 1996 when she was transferred to accommodation at Bow Lane West, Dublin 8. 3. On the 27th February, 1996 she attended at the offices of the Department of Justice and made application for political asylum. As she had not got her passport with her on that date she returned on the 28th February, 1996 with her passport. Mr. Barry O'Hara, a Civil Servant in the Department of Justice arranged for contact to be made with the United Kingdom Immigration Authorities and received an undertaking from the United Kingdom Authorities to accept the Applicant back and to deal with an asylum application should one be made. He also arranged that the United Nations High Commissioner for Refugees was also contacted for their agreement to the refusal by the Irish Authorities to accept the Applicant's application for asylum and they received approval from the United Nations High Commissioner for Refugees. 4. An examination of the Applicant's passport reveals that she was in possession of a single entry student visa for the United Kingdom which had been granted at the British Embassy in Kiev that she had arrived in London on the 21st February, 1996. The passport was endorsed with leave to enter the United Kingdom for six months provided that the passport holder did not enter employment or engage in any business or profession. Mr. O'Hara contacted Mr. Ingoldsby of the Department of Justice who is the officer with overall responsibility for the immigration and citizenship division and having considered the matters letters were prepared and handed to the Applicant and their contents explained to her. These letters indicated to the Applicant that her application for asylum would not be processed in this State as she had entered on a visa from the United Kingdom, a signatory State to the 1951 UN Convention relating to the Status of Refugees as amended by the 1967 New York Protocol and informing her that the United Kingdom Authorities are willing to accept her back to examine her claim for asylum. This decision was based upon the fact that the United Kingdom was considered to be her first country of safe haven. 5. Having contacted her solicitors, the Applicant made representations to the Department without success and accordingly on the 25th March, 1996 she sought and obtained an Order from the High Court giving her leave to apply for an Order of Mandamus directing the Respondent to consider her application for refugee status as defined in accordance with the United Nations Convention on the Status of Refugees of 1951 as amended by the Protocol on the Status of Refugees of 1967. In addition she was given leave to seek a declaration that the Applicant is entitled to have her application for refugee status determined in accordance with the agreement on procedures agreed between the Respondent and the United Nations High Commissioner for Refugees as set out in a letter dated the 13th December, 1985 from Cathal Crowley, Assistant Secretary of the Department of Justice to Mr. Von Arnim, United Nations High Commissioner for Refugees, Representative. She also was given leave to seek an injunction restraining the Respondent from making a Deportation Order. 6. The grounds upon which these reliefs are sought are that the Respondent has failed to act in accordance with its obligations imposed upon the State by the United Nations Convention on the Status of Refugees. 7. Ireland is a signatory to the United Nations Convention on the Status of Refugees and Stateless Persons, 1951 and the 1967 Protocol thereto but neither have been ratified by the State. In a letter of the 13th December, 1985 addressed to the representatives of the United Nations High Commissioner for Refugees, an Assistant Secretary of the Department of Justice wrote on behalf of the Minister for Justice that Ireland would implement procedures suggested by the High Commissioner's representative for applications for refugee status and asylum. The letter provided in particular that any asylum seeker would have an opportunity to present his case fully and that facilities would be provided for him to do so; that the application would be considered in accordance with the 1951 Convention and the 1967 Protocol; that humanitarian considerations would also be taken into account; that the Department of Justice would consult fully with the High Commissioner's representative before reaching a final decision to refuse refugee status; and that an applicant refused refugee status would be informed in writing of the reasons. 8. In the present case, it is agreed that the Respondent never embarked upon a consideration of the Respondent's application. She deemed it unnecessary to do so in reliance upon the generally accepted and well recognised international principle known as the "first safe country" principle. This procedure envisages that if there is a host third country, the application of an applicant for refugee status may not be examined and the asylum applicant may be sent back to that country. The undertakings and agreements contained in the letter of the 13th December, 1985 (the Van Arnim letter) is accepted by all parties to the agreement to be subject to the "first safe country" principle and practice. 9. It is submitted by Counsel on behalf of the Applicant that the power to return an applicant to the host third country may only be exercised in the context of all the facts of any particular case and in particular such matters as the circumstances in which the Applicant came to be in the host third country and the reasons which she might have for wishing to have her application determined in this jurisdiction. In these circumstances, it is submitted, a proper exercise of the Respondent's powers would require that all the relevant circumstances of the case be considered side by side with the right which the Respondent had, in certain circumstances to return the Applicant to the host third country. Moreover the status of that country and its right to be regarded as a host third country should also be examined and also to be included in such an examination would be the reason which the applicant might have had to have travelled to that country in the first instance, for the purpose of remaining there or alternatively using that country as a means of travel to the country of their choice. I do not accept this argument. In the course of his judgment in Fakih -v- Minister for Justice 1993 2 IR at 406, O'Hanlon J. said:- "Having regard to the terms of paragraphs 8 and 9 of the letter of the 13th December, 1985 it appears to me that before reaching a final decision to refuse the application, the Department of Justice should use its best endeavours to consult with the UNHCR Representative accredited to Ireland. A full examination of the question whether there are appropriate cases for granting asylum would not arise until this preliminary issue is resolved, and then only if it were resolved in the manner desired by the applicant. If such an international understanding exists as is contended for by the respondent, then the terms of the letter of the 13th December, 1985 must be read in the light of the understanding and qualified pro tanto." 10. I am satisfied that the wishes of the Applicant as to where she would wish her application for asylum to be determined are irrelevant. I accept as a statement of the law that the States that are signatories to the convention did not surrender their discretionary power to grant or withhold asylum but agreed to abide by Article 33 which prohibited refoulement (i.e. the expulsion or return of refugees in any manner whatever to the frontiers of territories where their lives or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion). 11. By resolution on a harmonised approach to questions concerning host third countries (London, 30th November and 1st December, 1992) it was resolved:- "(c) thus, if there is a host third country, the application for refugee status may not be examined and the asylum applicant may be sent to that country" . 12. I am satisfied that in this case there was a host third country, namely the United Kingdom and in these circumstances in view of the Protocol, the Respondent was precluded from examining the Applicant's application for asylum irrespective of the Applicant's wishes. I am satisfied that it has been established that the host third country was and remains prepared to consider the Applicant's application for asylum. I am satisfied that in accordance with what Mr. Justice O'Hanlon's directed, that contact was made with the UNHCR Representative accredited to Ireland and approval has been received. 13. In the circumstances, I am satisfied that there was no obligation upon the Respondent to embark upon an examination of the Applicant's asylum claim and it follows that there is no obligation to set forth reasons as none will exist. I accordingly refuse the relief claimed. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII