Irish High Court says quality of the decision-making in assessment of LGBT asylum seeker short of ‘moral ideal’

Mr. Justice Max Barrett of the High Court expressed concerns over the decision-making of the Minister for Justice and Equality in refusing to allow a bisexual asylum seeker to remain in Ireland. He said the quality of the decision-making put the State at risk of falling short of ‘moral ideal’.

The applicant, Mr. X, was a Nigerian national. He claimed asylum in Ireland in 2016. He was invited to an interview in May 2017. The Minister made it clear that he did not believe Mr. X’s assertion that he was bisexual and thus, the Minister rejected his claim that he should not be returned to Nigeria under the principle of refoulement.

The Minister sent Mr. X a copy of his decision together with a report of the International Protection Officer’s examination pursuant to section 39 of the International Protectional Act 2015. However, an error was made and the wrong name was included in the report. A week later, the Minister rectified the error and issued an updated report to Mr. X.

Mr. X subsequently brought judicial review proceedings challenging the Minister’s decision: firstly, for the error in including the wrong name in the report and secondly, for not providing a written decision of his opinion on the issue of refoulement.

Mr. X was not successful on either ground. Mr. Justice Max Barrett refused the first ground of appeal on the basis that Mr. X was out of time to make the complaint. According to the Illegal Immigration (Trafficking) Act 2000, an applicant has 28 days after the issue of the report to bring his appeal. Mr. X had waited nearly 30 months before seeking to challenge the report. Had Mr. X made the appeal in time, the judge noted that the error in the report was a purely administrative oversight which had been corrected swiftly by the Minister.

Mr. X’s second ground of appeal was also refused. The Judge pointed out the reasons for his deportation were contained in the notice of deportation that he received in October 2019. Moreover, the Judge pointed out that Mr. X had always known that the reason for his deportation was because the Minister did not believe that he was bisexual and thus, did not believe he would face persecution if he were to return to Nigeria.

However, although Mr. X’s appeal was unsuccessful, the Judge expressed grave concerns over the Minister’s actions and thought process while interviewing Mr. X and coming to the decision that Mr. X was not a bisexual. He stated that the granting of asylum was an “exercise in humanity” and that “there are moments in the process of Mr. X’s application when an onlooker might wonder at how the State has proceeded”.

When Mr. X told the Minister that he had several sexual encounters with men, the Minister argued that it was not credible that a man raised in a “restrictive environment would engage in behaviour both unacceptable and outlawed in the society in which he lives”. The Judge criticised this response and pointed out that the Minister, having grown up in Ireland, should know that being raised in a difficult environment did not mean that a person will avoid expressing their sexuality.

When Mr. X admitted that he had not sought the assistance of LGBT+ rights organisations or attended gay bars in Ireland, the Minister stated that this further added to the evidence that he was not a bisexual. The Judge criticised this and pointed out that "many LGBT+ people doubtless go through life without ever becoming involved in rights organisations and the notion that a poor man seeking asylum would have money to throw about in bars/clubs speaks for itself”.

The Judge concluded saying that the State risks falling short of the “moral ideal” of an asylum regime because, if the Minister was wrong, then he would be deporting Mr. X to a country where LGBT+ people are “treated badly and suffer greatly”.

Click here to read the full decision.



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