Judge criticises Justice Department for not implementing part of refugee regime

A High Court judge has criticised the Department of Justice and Equality for not implementing an aspect of the State's refugee regime, saying it was a way of undermining the rule of law.

Mr Justice Richard Humphreys said that when a department has "second thoughts" about the desirability of a new law it can seek to have it amended or repealed, and that such approaches are not problematic.

He said “other options that, conversely, undermine the rule of law to a greater or lesser extent, would be to leave the legislation uncommenced for an indefinite but not permanent period” or to “commence the legislation, but simply do nothing to implement it”.

“This last is the least acceptable of the options, but unfortunately it’s the one chosen by the Department of Justice and Equality here,” the judge added.

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Mr Justice Humphreys was referring to the failure to establish a panel of medical experts to be used to examine applicants for refugee status.

The International Protection Act 2015, which became law on December 30th, 2015, states that the Minister for Justice “shall” establish such a panel.

However, when a solicitor acting for a man from Albania who is seeking refugee status asked the department in July 2017 if such a panel had been established, he “never got a clear answer,” Mr Justice Humphreys said in a ruling published this week.

“Unhappily that lack of clarity was to continue right through to the last day of the hearing of the present proceedings.”

He said it was not appropriate that the department should be unwilling to admit to a central factual proposition. “I was only told by the [department] unambiguously that there was no panel at the eleventh hour.”

The man alleges that as a member of the Albanian police in 2011-2013 he suffered at the hands of criminals arising from his association with the demolition of illegal buildings.

He says that in August 2013 there was an attempt on his life during which he sustained severe physical injuries. Two years later he was again threatened, and he sought refugee protection in the State in January 2016.

The judge said the man, represented by Michael Conlon SC, had not had a fair and lawful consideration of his application to be referred to the panel of medical experts because the non-existence of the panel would have influenced the response to his request.

“It would require an unreal level of mental contortion for the [international protection officer] to say in effect ‘we will ignore the non-existence of the panel and now give pure and pristine consideration to your request to be referred to the panel, entirely uninfluenced by the non-existence of that panel or by the laborious process and delay that would have to be undergone if your request were to be granted’.”

Mr Justice Humphreys ordered the department to establish a panel by December. He also ordered a stay on processing the Albanian man’s case until after the panel had been established and his application was referred to it.