ANA v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Tara Burns
• Judgment Date: 15 September 2021
• Neutral Citation: [2021] IEHC 589
• Docket Number: RECORD NO. 2020/212JR
• Year: 2021
• Court: High Court

Between

ANA

Applicant

and

The Minister for Justice

Respondent

[2021] IEHC 589

RECORD NO. 2020/212JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Tara Burns delivered on 15 September 2021

General

1 The Applicant is a national of Pakistan who unsuccessfully applied for international protection in the State on 23 January 2015.

2 On 5 December 2019, the Respondent made a Deportation Order against the Applicant. In a letter to the Applicant on 28 January 2020, notifying him of the making of the Deportation Order, it was stated:-

“Having regard to the factors set out in section 3(6) of the Immigration Act 1999 (as amended), the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in the State.”

This reflects a document headed “Recommendation of file under Section 3 of the Immigration Act 1999”, which stated:-

“Section 3(6) of the Immigration Act 1999, as amended:

I have considered all of the facts arising in this case, as outline in the attached submission. Having done so, it is concluded that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of this case which might tend to support a decision not to make a deportation order in respect of [Mr. A].”

3 Leave to apply by way Judicial Review seeking an order of Certiorari of the Deportation Order was granted by the High Court on 27 May 2020 on the grounds that the Respondent had failed to consider the duration of residence in the State of the Applicant; humanitarian considerations; and representations made on behalf of the Applicant, as required by s.3 of the Immigration Act 1999, as amended (hereinafter referred to as “the 1999 Act”).

4 At the hearing before this Court, the grounds argued on behalf of the Applicant related to the alleged failure of the Respondent to consider the duration of the Applicant's residence in the State and the Applicant's employment prospects (which had not been specifically pleaded).

The Legislative Requirements

5 Section 3(6) of the 1999 Act requires the Respondent to consider certain specified matters when considering whether to make a Deportation Order. It provides:-

“In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—

• (a) the age of the person;

• (b) the duration of residence in the State of the person;

• (c) the family and domestic circumstances of the person;

• (d) the nature of the person's connection with the State, if any;

• (e) the employment (including self-employment) record of the person;

• (f) the employment (including self-employment) prospects of the person;

• (g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);

• (h) humanitarian considerations;

• (i) any representations duly made by or on behalf of the person;

• (j) the common good; and

• (k) considerations of national security and public policy, so far as they appear or are known to the Minister.”

The Respondent's consideration of s.3 matters

6 An “Examination of file under Section 3 of the Immigration Act 1999, as amended” document was included with the letter notifying the Applicant of the decision. It examined the various requirements which the Respondent is mandated to consider when determining whether to issue a Deportation Order. Relevant portions of that examination were as follows:-

“Section 3(6)(b) – Duration of Residence in the State of the Person

It is submitted that Mr. [A] arrived in the State on 19th January 2015 and applied for asylum on 23rd January 2015. It was submitted by Mr. [A], in a personal letter received by the Minister on 18 September 2019, that he has resided in Ireland for 4 ¹/₂ years. As no evidence of his arrival in the State, by way of a Passport or Immigration Landing Stamp, has been submitted, it is impossible to say, with certainty, how long Mr. [A] has resided in the State at the time of this submission.

Section 3(6)(e) – Employment (including self-employment) Record of the Person A number of references and certificates, to include a letter from Mr. Edward O'Shaughnessy, Employment and Project Officer, advising that Mr. [A] “started engaging with West Limerick Resources in November 2017 as part of its outreach services for Rural employment service… Taking an objective view [Mr. A] would be very employable for a range of positions and if given the opportunity be a very productive member of society”, have been received.

Further Certificates, Awards and letter of support were submitted in support of Mr. [A]'s case under cover of 13th September and 14th November 2019.

Section 3(6)(f) – Employment (including self-employment) Prospects of the Person

A letter from Mr. Raj BIR, R and Joy Pizza Express Ltd Apache Pizza, dated 17th April 2019, advises that he “is pleased to offer [Mr. A] job (sic) as a full time Chef. We trust that your skills and experience will be among our most valuable assets” and requested a copy of a valid GNIB card and PPS number.

Mr. [A] would appear to have a work history, albeit asserted to be through a “volunteering program through Limerick Volunteer Centre and personal Development Program” and I note the view of Mr. O'Shaughnessy that “he would be employable for a range of positions if he is given the opportunity. I note the submission by Sarah Ryan Solicitor that Mr. [A] “does not enjoy good health at all times, however, he instructs that this will not act as an obstacle to him obtaining employment. He has good English language skills, and a strong work ethic and instructs that he therefore, will be able to obtain employment and not be a burden on the State”. I note that Mr. [A]'s application for access to the labor market was refused on 30th April 2018.

I note that Mr. [A] has an offer of job in the...