Immigration and Asylum Law Briefing



Supreme Court to hear appeal in citizenship case based on 'secret evidence'

The Supreme Court is to hear the appeal of an Iranian man who has been denied citizenship, despite living in Ireland since he was granted refugee status in 1991, according to a report in the Irish Times. In 2014, his attempt to become a naturalised citizen of Ireland was blocked by then Minister for Justice Frances Fitzgerald on the grounds that allowing such an application would be harmful to 'national security and international relations'. This decision was then upheld by the High Court and the Court of Appeal.

The discerning aspect of this case, however, is the fact that the application was denied based on the strength of evidence presented in a secret report, known as 'Document C'. A spokesperson explained in a previous hearing that this report was created in the 'strictest confidence' and that the Department of Justice regularly relies on information provided by overseas intelligence agencies when considering citizenship applications. 

In order for an application for Irish citizenship to be successful, the individual must swear an oath of fidelity to the state and satisfy a 'good character' test. The department submitted that, based on the evidence available to them, they were unsure how genuine such an oath would be and that they were not satisfied that the applicant had met the 'good character' requirement.

The applicant submits that in order for him to refute the accusations against him, he must be allowed to have access to the evidence. Moreover, it was also submitted at an earlier hearing that allowing the department to rely on secret evidence contravenes his right to a good name as he cannot provide contrary evidence to dispel the accusations.

The Supreme Court has agreed to hear this case as it pertains to a matter of 'public importance'. The court is also expected to decide whether discretionary power to decide on matters of citizenship should remain with the Minister for Justice, a question that is central to the ongoing Damache case.


New practice direction issued for immigration and asylum cases

A new practice direction for immigration and asylum cases was issued on December 17 by the President of the High Court, Mr Justice Peter Kelly.

Entitled HC81, the new practice direction will apply to the asylum, immigration and citizenship list. Under the new direction, practitioners will be compelled to provide a significant amount of extra information prior to making an application. Section 8(a)(iii) states that: 'every statement or representation made by or on behalf of the applicant... to any immigration body whether in the State or elsewhere' must be disclosed.

Full and frank disclosure will also have to be made in respect of all legal proceedings in which the applicant has ever been involved, both within and without the jurisdiction of the state. Moreover, this new framework will apply not only to future cases, but also to pending judicial review actions. 

According to a report in the Irish Times, a number of solicitors wrote to the Law Society to voice concerns about the new regime - namely that it would cause a 'chilling effect' on asylum applications and give rise to 'access to justice issues'. In response, the High Court issued an explanatory note to clarify certain aspects of the direction.

A copy of the new practice direction can be downloaded here.


High Court dismisses judicial review application in 'conscientious objector' case

G.E. v Refugee Appeals Board [2018] IEHC 564

Judicial review application - Refugee Appeals Tribunal - s 16(2) Refugee Act 1996 - refugee status denied 

The applicant in this case, a national of Israel born in 1997, sought to judicially review a decision of the Refugee Appeals Tribunal, dated 7 November 2016, which recommended that the applicant should not be granted refugee status. The applicant had flown to Ireland on 23 July 2014, specifically for the purpose of seeking asylum based on her status as a conscientious objector. 

Israel has a system of mandatory military service, with conscription usually lasting two years and eight months for men and two years for women. The applicant's period of military service was scheduled to begin in July 2015. She submitted that if she did not comply she would be liable for two years' imprisonment and would be precluded from pursuing the career of her choice. 

The applicant was formally interviewed under s 11 of the Refugee Act on 13 October 2014. During the course of this interview, the applicant said that owing to the results she obtained in a military assessment, she would likely be assigned to a combat unit as opposed to taking up an administrative role. She stated that she would not be able to 'shoot and interrogate people and be involved in military actions', even though she was 'not a pacifist' in the general sense. The applicant is then recorded as saying that she is not outrightly opposed to military service, but only to military service in a combat unit within the IDF. 

The Tribunal delivered its decision on 7 November 2016, concluding that the applicant had not established a 'well-founded fear of persecution' as per s 2 of the Refugee Act 1996 and accordingly, should not be granted refugee status. This decision was then affirmed by then Minister for Justice, Frances Fitzgerald, before coming before the High Court for judicial review.

The court also looked to Chapter 5 of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, chapter 5 of which handbook deals with 'deserters and persons avoiding military service' - with s 171 explicitly stating: 'not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status'. The merit of an applicant's claim under this heading is therefore assessed with regard to the genuineness of the individual's convictions.

The application for judicial review was dismissed.




Note: This article is intended to provide a summary of recent developments and should not be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with immediately.


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