Minister’s designation of South Africa as ‘safe country of origin’ should be struck down, court told

The High Court is being asked to strike down Minister for Justice Helen McEntee’s designation of South Africa as a “safe country of origin”, which enables asylum seeker applications from there to be fast-tracked.

The safe origin declaration and accompanying faster processing applies to 10 non-EU countries, including newly added Algeria and Botswana.

Ms McEntee has said applications from safe countries are receiving decisions in under 90 days. Applicants from safe countries have to submit “serious grounds” that the country is not safe in terms of their personal circumstances, she said in a statement last month.

Countries that received earlier designations are: South Africa, Albania, Georgia, Kosovo, Macedonia, Montenegro, Serbia, Bosnia and Herzegovina.

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The designation assigned to South Africa is being challenged in the High Court by two South African international protection applicants who were refused refugee and subsidiary protection declarations by the International Protection Office and the International Protection Appeals Tribunal (Ipat).

The case was heard in its entirety on Tuesday before Ms Justice Siobhán Phelan said she was reserving her decision.

The partners, who are both white, arrived in the State a few years ago claiming they were not safe in their home country due to attacks on farms, crime, corruption and their inability to find work because of a government policy called Black Economic Empowerment.

They allege they and their family members were victims of crime and they feared they would be targeted by criminals, which is a risk enhanced due to their race or perceived wealth.

In the High Court, the couple’s barrister, Eamon Dornan, said that, due to being from a “safe country of origin”, they do not have the right to an oral hearing of their international protection applications unless the tribunal finds it is in the interests of justice.

He submitted that all South African applicants are in a “less favourable position” due to the designation.

Mr Dornan, instructed by BKC Solicitors, acknowledged the Republic is entitled to use the safe country designation system but, he submitted, this must be done while the relevant EU law is being transposed into Irish law. It was “irrational”, given various reports, for the Minister to determine that South Africa generally has no torture or inhumane treatment.

It was also “irrational” for the Ipat to find his clients were not subject to acts of serious harm, he added.

Countering on behalf of the State parties, David Conlan Smyth SC said that, to secure the reliefs sought, the applicants must meet the “high bar” of convincing the court no rational Minister could have made the designation based on the evidence.

Due to the requirement of the court and executive powers to be separate, he said the judge must show “an element of deference” to the Minister and her statutory functions. He said she and her officials considered the matter very seriously and comprehensively and were cognisant of a “catalogue” of reports and the provisions of the European Convention on Human Rights.

Mr Conlan Smyth said the applicants have taken a “rather selective series of potshots” at the designation, but the court must step back and consider the decision as a whole.

The State also objected to the applicants’ case as being brought out of time.

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