This case concerns an applicant who sought to quash the decision of the respondent which refused to revoke a deportation order made in respect of the applicant. The respondent contended that the applicant had been untruthful throughout the asylum process about his nationality and was therefore not entitled to any relief, while the applicant contended that the applicant’s untruthfulness should not be a bar to relief as substantial grounds established that a real risk to the applicant's life or freedom was inevitable. The Court found in favour of the applicant and quashed the decision of the respondent refusing to revoke the deportation order.
s. 5 of the Illegal Immigrants (Trafficking) Act, 2000
s. 17 (7) of the Refugee Act, 1996
Art. 2 and 3 of the European Convention on Human Rights
Art. 94 of the Constitution of Kenya
The applicant arrived in Ireland and made an application for refugee status stating his stating his country of origin to be Somalia. He claimed to be from Afgoye and part of the Reer Hamar tribe and at risk of being killed by dominant clans. He said his father had been killed by Ethiopian soldiers and his family had left so his uncle arranged for him to travel to Ireland. It transpired that the applicant had successfully applied for a student visa in the UK using a different name and date of birth and listing his nationality as Kenyan. A Sprakab linguist analysis found that the applicant did not speak the dialect of the Reer Hamar Tribe and that his knowledge of Afgoye could have been acquired through visiting the area. However, it found that he spoke Somali to the level of a native speaker.
The applicant’s asylum claim was refused and a deportation order was made. The applicant unsuccessfully applied for subsidiary protection and leave to remain in Ireland. The respondents intended to process the deportation order on the basis that the applicant was Kenyan as he was or had previously been in possession of a Kenyan passport and had provided no documentary evidence to prove that he was a Somali national. The applicant denounced the illegality of his passport at the Kenyan Embassy in Dublin; alleging that he obtained his Kenyan passport through bribery and had since destroyed his passport. The applicant evaded his deportation order and following a take back request from Switzerland in respect of the applicant, who had applied for asylum in Switzerland under a different name and date of birth, the applicant was returned to Ireland.
An expert opinion found evidence that validated the applicant’s claim that he grew up in Afgoye and that his primary entitlement to citizenship would be to Somalia. The expert highlighted that Kenya has been criticised to the Human Rights Council of the United Nations for its discriminatory citizenship laws and practices in relation to Kenyan Somalis who “struggle with statelessness”. The expert found that if the applicant’s passport was found to be illegal, the applicant could be deprived of his citizenship, making him stateless. The expert also highlighted the risks of persecution or serious harm and/or the risk of outward refoulement to Somalia from Kenya if the applicant were returned to Kenya, along with the conditions in Somalia that suggested a real threat to human life.
The respondents refused to revoke the deportation order without making reference to the expert’s report and the applicant challenged this decision.
- The respondent failed to have proper regard to the submissions made by the applicant in respect of the risk of refoulement and/or torture and inhuman and degrading treatment if the applicant were deported to Kenya.
- The respondent erred in law and/or in fact in confusing or conflating the distinct concepts of ethnicity and nationality, and in doing so, failed to conduct a proper assessment of whether there were substantial grounds for believing that there is a real risk that the applicant would face torture, inhuman or degrading treatment if returned to Kenya.
- The decision of the respondent that the fact that the applicant fraudulently obtained a Kenyan passport in the past would offer him protection against refoulement to Somalia if returned to Kenya is unreasonable and/or irrational.
- The applicant is at risk of persecution and/or serious harm and/or torture or inhuman and degrading treatment in the event of his return to Somalia. The applicant is at risk of detention and/or deportation to Somalia in the event of his removal to Kenya.
- By virtue of the applicant’s untruthfulness from the inception of the asylum process about his nationality, the applicant was not entitled to any relief.
- As the applicant held a Kenyan passport, there was no merit to the applicant’s representation that as an “ethnic Somali” he faced a real risk of a breach of his ECHR rights.
- There was no evidence that the Kenyan authorities were going to act on foot of the applicant’s alleged confession that he did not have Kenyan citizenship in order to make him stateless.
- The applicant can obtain a duplicate passport which would allay any concern of him being repatriated by the Kenyan authorities to Somalia.
- For the applicant to succeed he must establish that all ethnic Somalis in Kenya are subjected to inhuman and degrading treatment and discrimination that their treatment merits Art. 3 ECHR protection, which is not true with reference to the expert report which revealed that many Somalis obtain citizenship and are successful in Kenya.
Article 3 ECHR risk for someone of Somali origin in Kenya
The Court held that the respondent could not reasonably or rationally conclude that the applicant would not be at risk as a Kenyan Somali in Kenya given that there were materials before the decision maker which supported the applicant’s contention that there were substantial grounds for believing that there was a “real risk” that Somalis, including Kenyan Somalis, could be subject to treatment prohibited by Art.3.
In rejecting the likelihood of a real risk for the applicant, the decision-maker conflated the concepts of ethnicity and nationality/citizenship. In emphasising the fact that the applicant holds or has held a Kenyan passport, the respondent overlooked the potential relevance of country of origin information detailed in reports by international humanitarian organisations and the US State Department report on Kenya.
“A more thorough analysis of the country of origin information was required for a proper consideration of the Art. 3 risk, particularly when it was accepted by the decision-maker that the applicant was of Somali ethnicity and in circumstances where, as per Saadi v. Italy, as summarised by Denham J. in Rettinger (at para. 16), “it is for the Government to dispel” any doubt that there are substantial grounds for believing that the applicant would be exposed to the risk prohibited by Art.3. The fact that the applicant was a holder of a Kenyan passport (howsoever acquired) did not relieve the decision-maker of this obligation, given the clear evidence that Kenyan Somalis are targeted by the police and security forces in Kenya and that if arrested or detained they were at risk of being subjected to inhuman and degrading treatment.” (para. 79)
Risk of detention or deportation to Somalia if returned to Kenya due to the applicant disclosing to the Kenyan Embassy in Dublin the illegality of his passport
The Court found that the decision maker did not err in finding that the applicant had not established substantial grounds that he was at risk of refoulement to Somalia from Kenya because of his confession at the Kenyan Embassy. However, if an application for a duplicate passport were rejected, the applicant would be returned to Kenya as a Somali national. Therefore, the applicant’s second argument was made out. (paras. 95-96)
Whether there is any basis upon which to deny the applicant the relief claimed
The Court relied upon the ECtHR decisions in Chahal v. UK (para.80) and Ahmed v. Austria (para. 40) in finding that the applicant’s untruths throughout the asylum and immigration process cannot act as a bar to relief when there are substantial grounds to establish a real risk to the applicant’s life contrary to Article 3 ECHR. (para. 100)
The Court found in favour of the applicant and quashed the decision of the respondent refusing to revoke the deportation order made in respect of the applicant.
Sufi and Elmi v. United Kingdom App Nos 8319/07 and 11449/07 (ECHR, 28 November 2011)
Soering v. United Kingdom App no 14038/88 (ECHR, 7 July 1989)
B.M. v. Minister for Justice  IEHC 324
Minister for Justice v. Rettinger  3 IR 783.
State (Keegan) v. Stardust Victims Compensation Tribunal  I.R. 642 O’Keeffe v. An Bord PleanÃ¡la  1 I.R. 39
Meadows v. Minister for Justice  2 IR 701
A (S) [Pakistan] v Refugee Appeals Tribunal and Others  IEHC 625
AS (Bangladesh) v Minister for Justice  IEHC 417
O.F v Minister for Justice and Others  IEHC 252
P (S) (Sierra Leone) v Min for Justice and Others  IEHC 18
C (R) & M (G G)[Zimbabwe] v Refugee Applications Commissioner & Min for Justice  IEHC 490
Elukanlo and Another v Minister for Justice Equality and Law Reform  IEHC 211
PO v Minister for Justice  IESC 64,  3 IR 164