Judgment
An order from the UK Border Agency in Northern Ireland to remove a Sudanese asylum seeker and her three children (aged 18, 16, and 12 years) to the Republic, where they had initially sought asylum, was quashed because the judge found the decision was not in the best interests of the children.
Considering the living conditions associated with the Irish system of direct provision, removal of the family to the Republic would have amounted to “a failure to have regard to the need to safeguard and promote the welfare of the children as required by Section 55 of the Borders, Immigration and Citizenship Act 2009”.
Background
ALJ, a non-Arab Darfuri, fled Sudan with her three children and arrived in the Republic on May 4th, 2010. Her husband intended to accompany them but couldn’t afford the passage. She and her children sought asylum shortly thereafter, claiming that because of her ethnicity and her opposition to the ruling regime, they would be killed if they remained in Sudan.
In September 2010 the Refugee Applications Commissioner rejected ALJ’s asylum application on the grounds that she had not established a well-founded fear of persecution. ALJ brought an unsuccessful appeal against the decision in January 2011 and was later told she and her children would be deported if they refused to leave Ireland.
ALJ and her children travelled to Northern Ireland on 11 July 2011 and applied for asylum in the UK. A routine fingerprint check confirmed they had previously sought asylum in the Republic and directions were made by the UK Border Agency for ALJ and her children to return to the Republic under the “Dublin II regulation”.
In her application for judicial review, ALJ argued that there are systemic deficiencies in the Republic’s asylum and reception procedures, namely the absence of any proper policy in relation to Sudan and in particular non-Arab Darfuris.
She also contended that in deciding to return her and her children to the Republic, the immigration authorities incorrectly took into account that it complied with the European minimum standards directive for the reception of asylum seekers.
Decision
Justice Stephens rejected all grounds of challenge which relying on the contention that there is a systemic deficiency, known to the UK, in the Republic’s asylum or reception procedures. He noted, however, that asylum seekers can spend four or five years in communal centres in direct provision in the Republic and are neither allowed to work nor to claim state benefits while they are resident there.
Consequently he said, “The well-being both emotionally and financially of the primary carer and the importance of that to the well-being of the children in her care would point significantly to the best interests of the children being to remain in Northern Ireland.”
Justice Stephens noted that Ireland has opted out of the minimum standards directive, and a return order to Ireland would deprive the children of an education between the ages of 16 and 18. As such, he quashed the removal decision.