AA v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Tara Burns
• Judgment Date: 03 November 2020
• Neutral Citation: [2020] IEHC 561
• Docket Number: Record No. 2019/581/JR
• Date: 03 November 2020

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN:

AA, SK, HA (A MINOR)

AND

SA (A MINOR)

APPLICANTS

- AND –

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2020] IEHC 561

Tara Burns

Record No. 2019/581/JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms Justice Tara Burns delivered on 3 November, 2020

General

1 The applicants are Pakistani nationals. They are not Irish citizens, nor have they ever had permission to reside in this State. An application for intentional protection has never been made by any of them.

2 The first applicant entered the State in October 2015. The second and third applicants entered the State in January 2016. In February 2016, the first applicant made an application to be treated as a permitted family member of an EU citizen, such person asserted to be his brother. The second and third applicants were not included in this application. In November 2016, the fourth applicant was born within the State.

3 In February 2017, the first applicant's application was refused. He sought a review of this decision which was unsuccessful. A notification of the respondent's proposal to make a deportation order under s. 3 of the Immigration Act 1999 (hereinafter referred to as “the Act of 1999”), was issued to him on 10 August 2018.

4 On 3 October 2018, the first applicant submitted a further application to be treated as a permitted family member of an EU citizen. The other applicants were referred to in this application. This application was refused on 22nd January 2019.

5 In November 2018 and January 2019, the first applicant's former solicitor submitted detailed representations under s. 3 of the Act of 1999.

6 In April 2019, the respondent informed the second to fourth applicants that he proposed making a deportation order in respect of them. Detailed submissions were submitted on their behalf, by their former solicitor, in May 2019.

7 Section 3 examinations were carried out in respect of the applicants on 19 June 2019.

8 The various requirements which the respondent must consider pursuant to s. 3(6) of the Act of 1999 were considered by the respondent in respect of the applicants. Having considered these matters, the respondent concluded that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweighed such features of the case as might tend to support a decision not to make a deportation order in respect of each of the applicants.

9 The respondent also determined that no refoulement related reasons existed as to why the applicants could not be returned to Pakistan. Further, the respondent determined that repatriating the applicants to Pakistan was not contrary to s. 4 of the Criminal Justice (United Nations Convention Against Torture) Act, 2000.

10 The respondent considered Article 8 of the European Convention on Human Rights in relation to the applicants' situation and determined that a decision to deport the applicants was not in breach of the right to respect for private life.

11 The respondent also considered the applicants family life and determined that as it was intended to deport the entire family, no separation or sundering of the family was anticipated and that a decision to deport the family did not constitute an interference with the right to respect for family life under Article 8(1) of the ECHR and was not in breach of Article 8.

12 Accordingly, deportation orders issued in respect of the applicants on 21 June 2019.

13 Leave to apply by way Judicial Review seeking orders of certiorari quashing the deportation orders was granted by Humphreys J on 25 October 2019.

Grounds of Challenge

14 Counsel for the applicants does not take any issue with the decision of the respondent in relation to the matters considered by him. However, what he does take issue with is the submitted failure by the respondent to consider the applicants' asserted constitutional rights pursuant to Articles 40.1, 40.3, 41 and 42A of the Constitution.

15 The Statement of Grounds filed on behalf of the applicants does not set out the nature of the rights allegedly engaged pursuant to Article 40.1, 40.3, 41 or 42A of the Constitution: there is simply a blank assertion that rights, pursuant to these articles of the Constitution, were not considered by the respondent. When offered an opportunity by this Court to develop the nature of the rights engaged, counsel for the applicant did not take up this offer, indicating that it was not for him to set this out.

A decision maker can only decide matters which are before him

16 Asserted rights flowing to the applicants pursuant to Article 40.1, 40.3, 41 and 42A of the Constitution were not raised in the section 3 representations made to the respondent.

17 Counsel for the respondent makes an initial objection that the applicant cannot complain about matters not considered by the respondent when these matters were not before him in the first place. She points to the extensive and detailed submissions made by the applicants' former solicitor on their behalf, noting that there is no reference within these three sets of submissions to constitutional rights arising under the aforementioned...