Judgment: 2017-05-10 · Court archive

High Court quashes refusal to revoke deportation order after Kenya risk assessment found inadequate

The court found that officials had not properly assessed the risk of Article 3 ill-treatment to the applicant as a Somali in Kenya. It did not decide that he met the Article 3 threshold or rule on whether Kenya would return him to Somalia.

High Court · [2017] IEHC 380

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court found that officials had not properly assessed the risk of Article 3 ill-treatment to the applicant as a Somali in Kenya. It did not decide that he met the Article 3 threshold or rule on whether Kenya would return him to Somalia.

Where

Places mentioned in the report

  • Kenya
  • Kenyan Embassy in Dublin
  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

The High Court has quashed a 2015 decision refusing to revoke a deportation order against an anonymised applicant, finding that officials had not properly assessed the risk he could face as a Somali in Kenya.

The High Court has quashed a 2015 decision refusing to revoke a deportation order against an anonymised applicant, finding that officials had not properly assessed the risk he could face as a Somali in Kenya.

In a judgment delivered on 10 May 2017, Ms Justice Faherty granted certiorari of the Minister’s decision of 23 February 2015. The court’s review concerned that refusal to revoke the existing deportation order; it did not itself decide whether the applicant qualified for protection or whether he faced a real risk of Article 3 ill-treatment in Kenya.

The applicant had told Irish authorities he was from Somalia, but his accounts during the asylum and immigration process included information the court later described as repeated untruths. The Minister accepted for the revocation decision that he was Somali and had acquired Kenyan identity documents and a passport through bribery. The applicant said he had told the Kenyan Embassy in Dublin how he obtained the passport. The Minister considered it unlikely that Kenya would deport someone it appeared to recognise as a citizen and proposed that the applicant travel on a duplicate Kenyan passport.

The applicant argued that his Somali ethnicity exposed him to a risk of mistreatment in Kenya, including arbitrary arrest and abuse by police. He relied on an expert report and country information. The Minister’s position was that the evidence did not show that he personally faced the required risk and that his Kenyan passport made deportation to Somalia unlikely.

Justice Faherty found that the Minister had conflated ethnicity with nationality and had not adequately analysed country reports describing arrests and severe mistreatment of ethnic Somali Kenyans, Somali refugees and asylum seekers. The decision did not explain clearly why violence towards Somalis was considered insufficient to put the applicant’s life or freedom at risk. The judge held that this part of the risk assessment was not properly conducted and that the applicant had established two of his grounds of challenge.

The court rejected the separate challenge concerning the risk of being returned from Kenya to Somalia based on the applicant’s disclosure to the Kenyan Embassy. It found there was no sufficient material before the decision-maker to establish that Kenyan authorities would strip him of citizenship, and noted the applicant’s account that the Embassy intended to take a neutral position. The judge also said that if a future application for a duplicate passport were refused, that could amount to a new circumstance for the Minister to consider. The judgment did not determine what would happen in that event.

Although the court accepted that the applicant had repeatedly lied during the asylum and immigration process, it found this did not bar relief where the decision-maker had failed properly to address the risk argument. The order quashed the 2015 refusal. The deportation order itself was not quashed by the order described in the judgment.

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