Ireland / High Court / [2016] IEHC 20

Z.K. v Reception and Integration Agency & Ors
Policy area
Justice, freedom and security
Deciding body type
National Court/Tribunal
Deciding body
High Court
Type
Decision
Decision date
15/01/2016
  • Ireland / High Court / [2016] IEHC 20

    Key facts of the case:

    The applicant, an Algerian national, unlawfully arrived in the State on 6th March, 2014. He was refused asylum on 10th June, 2014, a decision which he has appealed. That appeal is outstanding and in the meantime he is in the ‘direct provision’ system for asylum seekers, whereby he receives accommodation and food from the State. He is housed in Viking House in Waterford, which is a private accommodation centre which has a commercial relationship with the Reception and Integration Agency in order to accommodate asylum seekers. The applicant received a total of five written warnings from the Reception and Integration Agency in respect of his behaviour, including using abusive language to the manager and staff, while living in Viking House. These were followed by a letter of 15th December, 2015 requiring his transfer out of the accommodation, to another accommodation, which gives rise to the present application. The applicant sought judicial review of the decision to transfer him and in relation to the handling of his complaints regarding food and hygiene in Viking House. At the hearing of the application, Mr. Paul Caffrey of the Irish Daily Mail asked in effect for permission to name the applicant as part of any continued reporting of the matter and this is where the CFR was referred to. The case does not refer to any specific provision but rather to the ‘Charter of Fundamental Rights’ in general.

    The CFR is referred to in the context of reporting Court proceedings and identifying the applicant as part of a newspaper report. The restriction on naming the applicant derives from s. 19 of the Refugee Act 1996. While the parties did not bring up the CFR, the judge referred to it in respect of the applicant’s right to anonymity, but did not develop the point as the parties had not brought it up.

    Outcome of the case:

    The application for leave to seek judicial review was refused

  • Paragraphs referring to EU Charter (original language)

    22. That section is not entirely free from difficulty. It imposes life-long anonymity in connection with asylum-related matters on a person who simply says “I claim asylum”. The person does not need grounds, or valid grounds, in order to benefit. The anonymity persists even if that application has been shown to be unfounded or even fraudulent. The section deprives the court of any jurisdiction to vary or remove the anonymity. It covers not simply the details of the asylum claim but even the person’s name. If an applicant is eventually returned to his or her country of origin, the authorities there will know that he or she is being deported or removed from Ireland, and if they are minded to engage in persecution of the applicant it will not be unduly difficult for them to infer that the likely legal basis of the person’s presence in Ireland was an asylum claim. Thus the protection of the applicant’s identity as such (as opposed to linking that identity with specific particulars of a claim against the authorities of an identified country) would seem to provide only illusory benefits for an applicant in many cases. In addition, the section applies in relation to asylum seekers from all countries, even those that do not in any way discriminate against or disadvantage returned failed asylum seekers. Its application persists despite voluntary acts on behalf of the applicant in invoking the jurisdiction of the court to challenge a refusal decision, or, as here, conditions of direct provision. Furthermore, the section confers a level of anonymity on asylum seekers, however spurious their claims, that is far in excess of the protection provided to persons, including Irish citizens, charged with criminal offences. Freedom to report court proceedings is an important right under the Constitution, the EU Charter of Fundamental Rights and the ECHR and provides important public policy benefits on behalf of the people of Ireland. However, in the absence of a constitutional, EU law or ECHR challenge to the section, there is not a great deal I can do about an application such as the one made to me in this case. A determination of whether or not s. 19 requires legal justification or is simply a policy matter for the Oireachtas, or, if such justification is required, whether it exists (see the issues discussed in UNHCR, Advisory opinion on the rules of confidentiality regarding asylum information, 2005, esp. para. 9, which provides some, although perhaps not total, support for a provision such as s. 19) would have to await such a challenge.