Judgment: 2010-11-12 · Court archive

High Court quashes refusal to revoke Nigerian man’s deportation order

The court found the Minister had not considered whether requiring the applicant to conceal his sexual orientation to remain safe could be reconciled with human rights protections. It did not decide his protection claim.

High Court · [2010] IEHC 519

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court found the Minister had not considered whether requiring the applicant to conceal his sexual orientation to remain safe could be reconciled with human rights protections. It did not decide his protection claim.

Where

Places mentioned in the report

  • Nigeria
When

Judgment:

Why

Reasons reported in the judgment

The High Court has quashed the Minister’s refusal to revoke a deportation order against an anonymised Nigerian applicant, finding that a central issue raised in his application was not considered. The ruling does not determine whether he is entitled to international protection or whether the order should ultimately be revoked.

The High Court has quashed the Minister’s refusal to revoke a deportation order against an anonymised Nigerian applicant, finding that a central issue raised in his application was not considered. The ruling does not determine whether he is entitled to international protection or whether the order should ultimately be revoked.

The applicant’s account, as recorded in the judgment, was that he was a Christian from Nigeria who feared harm because of his sexual orientation. He said he had been threatened after his boyfriend’s brother discovered their relationship. The asylum authorities rejected his claim, citing credibility concerns and concluding that he could live safely elsewhere in Nigeria if discreet.

The Minister refused subsidiary protection in January 2009 and rejected leave to remain the following month. A deportation order was made on 4 February 2009. In June, the applicant asked the Minister under section 3(11) of the Immigration Act 1999 to revoke it. His submissions relied on 2008 UNHCR guidance that said a person should not be required to conceal their sexual orientation to avoid persecution.

The Minister refused the application in July 2009, relying on country information about Nigerian law and practice, the prospect of internal relocation and the availability of support organisations. The decision concluded that protection would be available and accessible in Nigeria. The applicant sought judicial review of that refusal; he had already been deported after an application for injunctive relief was refused.

Mr Justice Ryan said the Minister’s file recorded receipt of the applicant’s submissions and the UNHCR guidance, but did not show consideration of the key question: whether relying on discretion to avoid harm was compatible with human rights and Convention protections. The judge said that omission was fatal to the decision in the circumstances of the case.

The court granted certiorari, quashing the Minister’s decision of 28 July 2009. On reconsideration, the Minister may consider other relevant matters. The judgment noted that credibility issues had been raised by the asylum authorities and said it was for the Minister to decide what weight to give those findings. The court did not itself resolve those issues or direct that the deportation order be revoked.

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