YY v Minister for Justice & Equality: Supreme Court will review Minister’s decision to deport convicted terrorist

In this determination (YY v Minister for Justice & Equality), the Supreme Court granted YY leave for a leapfrog appeal from the High Court decision to allow his deportation to proceed, due to the exceptional circumstances of the case. YY was previously imprisoned for planning terrorist actsincluding in Ireland. But, if deported to his home state, he faces the risk of treatment contrary to Article 3 of the European Convention on Human Rights (prohibition of torture).

 

Background

YY is a native of “Country X”, which sentenced him, in his absence, to three life sentences and two death sentences for serious terrorist offences. In 1997, YY arrived in Ireland and applied for asylum under a false name. The Refugee Appeal Tribunal (RAT) granted him refugee status and travel documents.

In 2005, a French court sentenced YY to eight years imprisonment for preparing terrorist acts in Ireland, England, France, Spain and Andorra. France also refused to grant him refugee status. In light of this, the State revoked YY’s refugee status in 2011.

YY re-entered Ireland and applied again for refugee status or subsidiary protection. The Commissioner refused. On appeal, the RAT stated that “there was a personal, present, foreseeable and substantial risk of serious harm by the [Country X] authorities”, but rejected YY’s appeal on grounds of his offending behaviour.

In a 2009 case, the ECtHR prohibited the deportation of a Country X citizen on grounds that there was a real risk that that state’s authorities would breach his Article 3 rights. But, ordering YY’s deportation, the Minister cited up to date material showing that conditions in Country X have evolved.

In he High Court, Humphries J (here) held that that decision was within the range reasonably open to the Minister. Humphries dismissed YY’s judicial review challenge and refused to certify an appeal to the Court of Appeal.

YY applied to the Supreme Court for leave for a leapfrog appeal.

The Court determined that this case did raise issues of general interest and that the High Court refusal of an appeal to the CoA provided the exceptional circumstances to meet the constitutional threshold for a leapfrog appeal.

The Court approved the following questions for appeal:

(i) Where a Minister orders deportation of an individual and relies on country of origin material which is generally available to conclude that return of an applicant to a country would not be a breach of s.5 of the Refugee Act 1996, and/or that there are no substantial grounds for considering that there is a real risk that the applicant will be subjected to treatment contrary to Article 3 of the Convention, is the Minister required to notify the applicant of the said material and invite submissions upon it?;

(ii) If the Minister is under such an obligation, is it satisfied, or otherwise affected, by the fact that an applicant was provided with the reasons for the making of a deportation order, including the reference to the said material, and is entitled to apply for a revocation of that order (and did so)?;

(iii) Given that in comparable cases the ECtHR or other reputable national immigration authorities, or in the particular case, the Refugee Appeals Tribunal, have made findings that there is a real risk on substantial grounds, if a person in a comparable circumstance or the applicant in this case are returned to Country X that they will suffer a treatment which is a breach of Article 3 of the Convention, did the reasons provided by the Minister for (i) making the deportation order under s.3(1) and (ii), refusing to revoke the deportation order under s.3(11) of the 1999 Act, provide a sufficient lawful basis for the said decision?

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