Ireland - E. S. E. v Minister for Justice, Equality and Law Reform

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.

Case name (in original language)
E. S. E. v Minister for Justice, Equality and Law Reform
Case status
Case number
[2017] IEHC 380
E. S. E. v Minister for Justice, Equality and Law Reform [2017] IEHC 380
Date of decision
Court / UN Treaty Body
High Court
Language(s) the decision is available in
Applicant's country of birth
Applicant's country of residence
Relevant Legislative Provisions

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. 

Decision & Reasoning

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.

Caselaw cited

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 [2013] IEHC 324
Minister for Justice v. Rettinger [2010] 3 IR 783.
State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39
Meadows v. Minister for Justice [2010] 2 IR 701
A (S) [Pakistan] v Refugee Appeals Tribunal and Others [2015] IEHC 625
AS (Bangladesh) v Minister for Justice [2015] IEHC 417
O.F v Minister for Justice and Others [2012] IEHC 252
P (S) (Sierra Leone) v Min for Justice and Others [2012] IEHC 18
C (R) & M (G G)[Zimbabwe] v Refugee Applications Commissioner & Min for Justice [2010] IEHC 490
Elukanlo and Another v Minister for Justice Equality and Law Reform [2006] IEHC 211
PO v Minister for Justice [2015] IESC 64, [2015] 3 IR 164