The High Court has quashed a decision affirming the deportation order of a Pakistani national, finding that the Minister for Justice had not properly assessed whether he could face the death penalty if prosecuted and convicted in Pakistan.
In a judgment delivered on 6 September 2016, Ms Justice Faherty ruled that the Minister must reconsider the matter in line with the applicable legal principles. The court did not decide whether the applicant would face the death penalty or whether he could lawfully be deported after reconsideration.
The applicant, identified in the judgment as M. Y., came to Ireland in 2008 and sought asylum. He said he had killed a man in self-defence during an attack following a dispute over a house burglary. He claimed that a police report, known as a First Information Report (FIR), had been filed against him and that his family faced repercussions. These were his claims; the Minister said the FIR’s authenticity and the account could not be verified.
After earlier asylum and protection applications were refused, a deportation order was made in 2012. The applicant later asked the Minister to revoke it, arguing that he might face arrest, detention, torture or the death penalty if returned. The Minister affirmed the order in October 2015. The decision referred to the applicant having remained in Pakistan for two years after the FIR without being arrested, and to information about weaknesses in the country’s system for tracking FIRs. It also considered the possibility of prosecution and concluded that he would have access to legal representation and a fair trial.
The applicant challenged that decision by judicial review. The High Court said the risk of the death penalty was a new issue that had not been considered in earlier proceedings. It found that once the Minister considered the possibility of prosecution in a country where the death penalty applied to capital crimes, she also had to assess the consequences if the applicant were convicted. Access to a fair trial and legal representation did not, by themselves, resolve that question.
The court found that the decision did not show what legal principles had been applied to the risk assessment or explain whether the FIR system and the applicant’s past non-detection were considered enough to remove the risk. It held that the challenges on grounds a, b, d, e and f had been made out. Two other grounds—proportionality and advance disclosure of country information—were not pursued at the hearing.
The court issued certiorari quashing the Minister’s 29 October 2015 decision and remitted the matter to the Minister for determination under the applicable legal principles.