Judgment: 2013-06-18 · Court archive

High Court rejects challenge over Afghan father’s permission to remain in Ireland

The court found that A.J.’s 2008 permission was granted on humanitarian grounds, not because his return to Afghanistan would breach the prohibition on refoulement.

High Court · [2013] IEHC 296

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court found that A.J.’s 2008 permission was granted on humanitarian grounds, not because his return to Afghanistan would breach the prohibition on refoulement.

Where

Places mentioned in the report

  • Ireland
  • Iran
When

Judgment:

Other dates in the report
  • 22 December 2008

    The judicial review concerned the Minister for Justice’s decision of 22 December 2008. A.J. had been refused subsidiary protection but granted permission to remain for two years as an “exceptional measure”. His permission was later renewed. The court heard that his wife and children were living in Iran and had never been to Ireland.

Why

Reasons reported in the judgment

The High Court has refused declarations sought by an Afghan father, his wife and two children over the reasons for the father’s permission to remain in Ireland. The court found that A.J.’s temporary permission was granted on humanitarian grounds under section 3(6) of the Immigration Act 1999, not because deporting him would breach the prohibition on refoulement.

The High Court has refused declarations sought by an Afghan father, his wife and two children over the reasons for the father’s permission to remain in Ireland. The court found that A.J.’s temporary permission was granted on humanitarian grounds under section 3(6) of the Immigration Act 1999, not because deporting him would breach the prohibition on refoulement.

The judicial review concerned the Minister for Justice’s decision of 22 December 2008. A.J. had been refused subsidiary protection but granted permission to remain for two years as an “exceptional measure”. His permission was later renewed. The court heard that his wife and children were living in Iran and had never been to Ireland.

The family sought a declaration that the 2008 decision was based on non-refoulement, or alternatively that the reasons given were too unclear to allow effective access to the courts. They also sought an order requiring the Minister to provide full reasons. The family’s visa refusals were not challenged in these proceedings.

The applicants relied in part on an internal memorandum released under freedom of information in June 2012. It recorded that A.J.’s case had been examined under both section 3 of the 1999 Act and section 5 of the Refugee Act 1996, which prohibits return to a place where a person’s life or freedom would be threatened on specified grounds. The family argued that this showed the leave had been granted because of a risk of refoulement and could assist their efforts to join A.J. in Ireland.

The Minister argued that the permission followed humanitarian submissions about A.J.’s mental health, bereavements and family circumstances. The court accepted that account. It said the letter notifying A.J. of the decision expressly identified section 3(6), and that the surrounding file showed the Minister had considered his circumstances after refusing subsidiary protection. The internal memorandum was not itself the decision and did not establish that refoulement was the basis for granting leave.

Justice Clark also found that the reasons for the positive decision were sufficiently clear in context. The judgment distinguished this case from decisions refusing an application, where reasons may be necessary to let an affected person assess whether to challenge the decision. The court did not decide whether every positive decision made under a discretionary power must include a full statement of reasons.

The court dismissed the applications for declaratory relief. It did not rule on the legality of the family visa refusals or on whether the general policy against family reunification for people granted temporary leave could withstand constitutional or human-rights scrutiny. Because the applicants did not obtain the declarations sought, the court said it was unnecessary to decide the time-limit issue.

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