Abramov -v- MJELRNeutral citation (2010) IEHC 458 High CourtJudgment was delivered on December 17th, 2010, by Mr Justice John Cooke.
Judgment
If the Minister for Justice considers the presence of a refugee within the State is no longer tolerable, the appropriate course is expulsion, not revocation of his refugee status.
Background
The appellant is a native of Dagistan in Russia, who was found to be a refugee and granted asylum when he came to Ireland in 2002. He is Jewish and claimed asylum on the grounds of religious persecution.
Between August 2007 and July 2008, he was convicted of a number of criminal offences and was imprisoned. In January 2009, the Minister wrote to him stating that his criminal activities rendered him liable for the revocation of his refugee status. As he was in Mountjoy Prison at the time, and the letter was sent to Castlerea Prison, he did not receive it.
A fresh letter was issued in November 2009, stating that as a result of his “persistent involvement in criminal activities”, he was a person “whose presence in the State poses a threat to national security or public policy”, thus rendering him liable to revocation of his refugee status.
Representations made on his behalf included the point that his activities were linked to his addiction to heroin, but the Minister responded that no medical evidence had been provided to confirm that he had a drug habit at the time he committed the offences.
The applicant was not challenging the facts cited by the Minister in relation to the criminal behaviour, but was contesting the legal basis on which he was seeking to revoke his refugee status.
He argued that the Minister was wrong to rely on section 21 (1) (g) of the 1996 Refugee Act to revoke his refugee status on the grounds that he was “a person whose presence poses a threat to national security or public policy”.
He pointed out that under the 2006 European Commission regulations, the Minister could revoke refugee status where there were reasonable grounds for regarding him as a threat to the security of the State, or where, when the person had been convicted of a particularly serious crime, he or she constituted a danger to the community of the State. It was argued that these supplanted the section of the Refugee Act under which the Minister acted.
Decision
Mr Justice Cooke said it must be noted that the Geneva Convention distinguished between the cessation of refugee status, when it was no longer justified or necessary, and the expulsion of a refugee from a contracting state. The latter could occur on the grounds of national security or “ordre public”.
A refugee may have his or her status revoked without necessarily being expelled from the State and equally may be expelled from the territory while remaining a refugee.
Ireland had declared “ordre public” to be “public policy” in giving effect to the Geneva Convention in the 1996 Act. It appeared that there was a flaw in the manner in which it had given effect to the convention, in that the convention allowed “ordre public” to be a ground for expulsion, while the Act allowed “public policy” to be a ground for revocation of refugee status.
This could take place on the basis of a series of criminal convictions, without considering whether they involved “a particularly serious crime and a danger to the community of the State”.
Expulsion under Article 32 of the convention was expulsion of a person who was still a refugee. Revocation of refugee status was appropriate and necessary when the circumstances making the person a refugee no longer existed. When this occurred, it was not for the purpose of imposing a sanction. Thus it was only appropriate to do so when circumstances giving rise to the need for asylum had changed.
If the presence of a refugee in a State’s territory was intolerable the appropriate remedy was expulsion, not the revocation of refugee status. This could only occur when the refugee had been convicted by a final judgment of a particularly serious crime and constituted a danger to the community of the country of refuge.
In this case the applicant had not ceased to be a refugee. If the Minister considered his presence in the State to be no longer tolerable, the appropriate course was expulsion, and that was only possible by means of a decision that he had been convicted of a particularly serious crime.
The full judgment is on courts.ie
Rosario Boyle SC and Anthony Lowry BL instructed by A C Pendred, for the applicant; Sarah Moorehead SC and Denise McGrath BL, instructed by the Chief State Solicitor, for the State.