AB v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ryan P.
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] IECA 48
• Date: 26 February 2016
• Docket Number: [2014 No. 1440] [2014 No. 1441] [2014 No. 1442]

Ryan P.

Peart J.

Hogan J.

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

BETWEEN

A.B., C.D.

AND

E.F.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTIES

[2016] IECA 48

Ryan P.

[2014 No. 1440]

[2014 No. 1441]

[2014 No. 1442]

THE COURT OF APPEAL

Immigration ? Deportation ? Proportionality ? Applicants seeking order of certiorari quashing respondent?s proposal to make deportation orders ? Whether judge failed to apply the principle of proportionality

Facts: The first applicant is a Pakistani national. In a March 2013 letter, the first respondent, the Minister for Justice and Equality, instructed her to make arrangements to leave the State since her visitor?s permissions had expired in October 2012. She did not leave the State and the Minister wrote by letter in April 2013, stating that she proposed to make a deportation order against her under s. 3 of the Immigration Act 1999. The first applicant instituted proceedings by a May 2013 notice of motion, seeking reliefs including: an order of certiorari quashing the Minister?s proposal to make a deportation order; a declaration that the Minister is obliged to put in place a procedure whereby the first applicant may make representations that she is entitled to reside in the State on the basis of her rights under the Constitution and the ECHR without risking being permanently excluded from the State should those representations be unsuccessful; if necessary, a declaration that s. 3 is invalid, having regard to the provisions of the Constitution and a declaration that the section is incompatible with the Convention. In October 2014, the High Court (Barr J) rejected the first applicant?s claims. She then appealed to the Court of Appeal claiming: first, that Barr J was in error in making a distinction between an impermissible impediment and a permissible deterrent; second, the judge failed to apply the principle of proportionality where the Minister had not adduced evidence to justify interference with the first applicant?s rights; third, the judge was in error in citing an analogy with an order for costs in civil proceedings; fourth, the judge was wrong in rejecting the argument that the procedure represented an impediment on her right to make representations; finally, the judge was wrong in finding that s. 3 was not invalid having regard to the provisions of the Constitution or inconsistent with the ECHR. The second and third applicants are Chinese citizens. They married in 2012. The second applicant entered Ireland on the basis of a student visa in 2004. Her permission expired in 2005. She remained in the State and came to the attention of the Gardaí in 2008 and a proposal to deport her was issued in September 2008. No decision was made until May 2013 when the Minister considered the making of a deportation order against both husband and wife under s. 3. They made representations to the Minister pursuant the section and asserted that they should not be deported because of, inter alia, their family rights in the State. Those representations were unsuccessful and deportation orders were made in respect of both applicants. The High Court (Barr J) gave separate judgments in the cases of the second and third applicants in October 2014. The court noted that the applicants had adopted the submissions made in the linked case of the first applicant which was heard at the same time. The core of the cases was that the absence of a gap between the Minister?s rejection of representations pursuant to s. 3 and the making of a deportation order constituted an impediment to an applicant?s right to make representations under Article 41 of the Constitution and Article 8 of the ECHR.

Held by Ryan P that the presumption of constitutionality applies to s. 3 so the onus of proof is on the applicant to establish disproportion and not on the State to establish that its regime is reasonable. Ryan P held that the applicants had not done so. Ryan P held that there is nothing in the scheme of deportation under s. 3 to inhibit any claim being put forward by any applicant.

Ryan P held that the High Court was correct in rejecting the applications and dismissed the appeals.

Appeal dismissed.

JUDGMENT of the Court delivered by the President on 26th February 2016

A.B.'s Case

1 The applicant was born in February 1960 and is a Pakistani national. Her daughter and son-in-law live lawfully in Cork with their two Irish citizen daughters who were born, respectively, in 2010 and 2011. She came to Ireland on a visitor visa lasting for 90 days from the date of issue in April 2011 and was here for the birth of her daughter's second child. Further permissions were granted enabling her to remain lawfully in the State for longer time covering a period up to 31st October 2012. During the currency of the first visa period, A.B. went back to Pakistan from where she returned to the State on 17th November 2011. She has remained here since.

2 Shortly after A.B.'s arrival in November 2011, she applied for an extension of the permission which was granted on 16th January 2012 for a further period of three months. The Minister's letter said that this was an exceptional measure. By letter of 23rd March 2012 from her solicitor, A.B. indicated that she wanted to live in the State and applied for Stamp 4 permission which would entitle her to live in the State and to work and access public services. In a letter of 25th April 2012, the Minister refused that application for a change of status, but granted a further three months permission to remain on the same conditions as before, stating that it was an exceptional measure. That permission extended until 25th July 2012.

3 By letter of 25th May 2012, A.B.'s solicitor returned to the question, saying that his client ?would like to travel to and from Pakistan and be with her family here as the need arises?. The Minister in response granted another three months extension until 31st October 2012.

4 Following another application by A.B.'s solicitors in a letter of 20th February 2013, the Minister responded in a formal memorandum dated 20th March 2013. In this memorandum, the Minister set out the history of A.B.'s immigration status in the State and the submissions that were made on her behalf. The solicitors had relied on High Court authorities suggesting that grandparents could have rights recognised under the Constitution and that A.B. was entitled to avail herself of such entitlements. The case was also made that she was needed because of her daughter's state of health. The Minister addressed the issue of rights under the Constitution or of Article 8 of the European Convention on Human Rights. The memorandum concluded that a refusal did not interfere with any rights that A.B. might have under these provisions. The Minister refused the application on A.B.'s behalf to renew the previous permissions.

5 In the Minister's letter of 22nd March 2013, A.B. was instructed to make arrangements to leave the State since her visitor's permissions had expired on 31st October 2012 and the letter required that she should provide the Minister with evidence of her departure which should be done by 15th April 2013. If that was not done, it was the intention of the Minister to issue notification under s. 3(4) of the Immigration Act 1999, that is, a proposal to deport in respect of A.B..

6 A.B. did not leave the State. The Minister wrote by letter of 17th April 2013, stating that she proposed to make a deportation order against A.B. under s. 3 of the 1999 Act. The reasons given were that her permission had expired on 31st October 2012; that she had remained in the State since that date without permission and that she was consequently unlawfully present in the State. The letter outlined the three options open to A.B. under s. 3(4), namely, that she could make representations in writing to the Minister within 15 days; that she could leave the State before the Minister decided the matter or that she could consent to the making of the deportation order. The letter said that she could submit written representations against the making of the deportation order and she could attach any additional documents in support of her case. If she decided to avail herself of the facility of making representations as to why the order should not be made, the Minister provided the following caution and information:

?If you choose this option, it is very important that you understand the following:

The Minister will proceed to decide on your case in accordance with the provisions of s. 3 of the Immigration Act 1999 (as amended). If the Minister decides to make a Deportation Order in respect of you, you will no longer have the option of leaving the State voluntarily i.e. without a Deportation Order.?

The letter said that a deportation order would place a legal obligation on A.B. to leave the State and remain outside it. If A.B. did not make representations, the Minister would proceed to consider the case on the basis of the information already on the file.

7 A.B. did not opt for any of the choices offered to her, but instead instituted the present proceedings by notice of motion of 1st May 2013, seeking reliefs including an order of certiorari quashing the Minister's proposal to make a deportation order; a declaration that the Minister is obliged to put in place a procedure whereby A.B. may make representations that she is entitled to reside in the State on the basis of her rights under the Constitution and the European Convention on Human Rights without risking being permanently excluded from the State should those representations be unsuccessful; if necessary, a declaration that s. 3 of the Immigration Act is invalid, having regard to the...