Security and rights may be at odds in Isis-linked deportation case

Most states will not send someone home to be tortured. But what of threats to those states?

Remy Farrell SC, for Minister for Justice, Equality and Law Reform Frances Fitzgerald, said it was “ironic” the more “infamous the conduct of the person concerned”, the more difficult it would be to expel them from your territory.

Remy Farrell SC, for Minister for Justice, Equality and Law Reform Frances Fitzgerald, said it was “ironic” the more “infamous the conduct of the person concerned”, the more difficult it would be to expel them from your territory.

 

Serious questions involving national security, the threat of extremist Islamist groups and the possibility of deporting someone to a regime where they would be tortured, were canvassed before the Irish courts this week.

Given the ongoing upheaval in the Middle East, the related refugee crisis and the international spread of groups such as Islamic State (Isis), the fight against deportation by a man the authorities allege is the most senior Isis figure in this jurisdiction has raised a very real question. How will the Irish legal system react to pressures from people who have contempt not just for the law, but western values generally?

Irish law recognises the European Convention of Human Rights (ECHR), article 3 of which states bluntly that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Yet many of the countries to which Ireland might in the future want to return people it believes are activists for Islamic terrorism are known to inflict torture on those they consider threats to their regime.

The man, whose case led to emergency sittings of the High Court and Court of Appeal this week, has said he is innocent of the allegations made against him by the State. But irrespective of whether that is true, the case still brings into focus the pressures on western values that have proved such a challenge elsewhere.

The European Court of Human Rights in Strasbourg, which rules on alleged breaches of the convention, has found against the UK, for instance, in a number of cases where “national security” has been put in the balance against the convention’s principles.

Evidence and torture

Abu Qatada

The man whose case was before the Dublin courts this week cannot be identified by order of the courts. The authorities believe he is the foremost Isis figure in the State and has recruited here and assisted people in travelling to fight for Isis.

One of his sons was involved in fighting in the Middle East and another is being detained there without charge. The man has claimed he was tortured years ago in the country to which Ireland wants to return him, and his legal team has argued that what has been said about him in the Irish courts increases the likelihood of him being tortured if he is deported.

In response to the latter point, Remy Farrell SC, for Minister for Justice, Equality and Law Reform Frances Fitzgerald, said it was “ironic” the more “infamous the conduct of the person concerned”, the more difficult it would be to expel them from your territory. “That is a proposition that it is hard to accept,” he said

Nevertheless, counsel for both sides appeared in agreement on one point when before the Court of Appeal: Ireland should not deport people to countries where they will be tortured.

“We, as a civilised country, do not return [people] to a place where there is a real risk of [their] being subjected to torture,” said Michael Lynn SC, counsel for the appellant.

Farrell agreed the protections people are entitled to under article 3 of the European Convention of Human Rights are an “absolute” entitlement. If there is a “real risk” of a breach of the article, then Ireland cannot deport: “That is a position that the Minister does not shy away from.”

Injunction on deportation

Quite where that leaves the State is not clear. The hearing was almost over when it was disclosed that the Strasbourg court had responded to an application made to it just a few days earlier, and directed that the man should not be deported pending its consideration of the matter. If the case goes to full hearing in Strasbourg, it could take a year or more before the direction is lifted. Meanwhile, the Court of Appeal hearing is back for mention next month, and Ireland finds itself dragged into one of the most contentious legal debates of modern times.

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