The High Court quashed a deportation order against an Albanian woman after finding that the Minister for Justice and Equality relied on a repealed statutory provision and that the supporting analysis failed to address new evidence she had submitted.
In a judgment delivered on 23 March 2018, Mr Justice Richard Humphreys held that references in immigration legislation to section 5 of the repealed Refugee Act 1996 should, under the Interpretation Act 2005, be read as references to section 50 of the International Protection Act 2015. Section 50 provides protection against refoulement, including where there is a serious risk of death penalty, torture or other inhuman or degrading treatment.
The woman, identified in the judgment as S.G. (Albania), arrived in Ireland on 24 November 2012. Her asylum application and a later appeal were refused. She applied for subsidiary protection in July 2013; that application and a subsequent appeal were also unsuccessful.
The Minister proposed deportation in October 2016. The woman made submissions, including an attestation dated 11 July 2016, in support of her claim that she faced a risk of harm. The deportation order was formally made on 13 January 2017, after the 2015 Act had come into force. It was served on her on 29 August 2017.
The order stated that it was subject to section 5 of the 1996 Act and that the provision had been complied with, although that section had been repealed on 31 December 2016. The judge concluded that the reference should instead have been treated as one to section 50 of the 2015 Act. The error appeared on the face of the order and supporting analysis, providing grounds to quash the decision.
The court also found that the Minister’s analysis said no further evidence had been advanced that might alter the decision on serious harm. The woman had submitted the attestation, but its contents were not addressed in the analysis. The State argued that the finding meant the new material was insufficient to change the Minister’s view. The judge rejected that as a retrospective recharacterisation of the decision, and found the order should be quashed on this ground as well.
The judgment said the duration of the woman’s residence had been assessed at the time the order was made, not when it was served. The delay in service did not invalidate the order, and the judge rejected that challenge. He ordered certiorari quashing the deportation order and said consequential issues would be discussed with counsel.