AP v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IEHC 669
• Court: High Court
• Docket Number: [2016 No. 778 J.R.]
• Date: 14 November 2016

[2016] IEHC 669

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 778 J.R.]

BETWEEN

A.P.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

Asylum, Immigration & Nationality – S. 3(11) of the Illegal Immigrants (Trafficking) Act, 2000 – Appeal against the decision of Refugee Appeals Tribunal – Certiorari – Deportation order – Arrest and detention

Facts: The applicant sought leave to apply for judicial review in relation to the second deportation order made against him by the first named respondent. The applicant who came to the State from Pakistan had completed 13 years and had been on notice of the second deportation order. The applicant contended that the refusal to revoke the deportation by the first named respondent was invalid. The applicant contended that the first named respondent was obliged to publish the principles on policies relating to leave to remain or revocation of deportation orders. The respondent submitted that the applicant had failed to show substantial grounds to contend that he had further chance to challenge his deportation. The respondent submitted that the applicant could not challenge his deportation order under the guise of s.3 of the Illegal Immigrants (Trafficking) Act, 2000 to revise any point that could have been litigated earlier by way of challenge to the impugned deportation order.

Mr. Justice Richard Humphreys refused the application for leave to seek judicial review. The Court viewed the facts and circumstances of the present case and held that it was not the case that no criteria had been available. The applicant failed to show substantial grounds for the proposition that there was a legal entitlement to make a best possible case in his present situation. The Court observed that the applicant was sent a notice regarding the intention to deport him and providing an opportunity to make submission. The applicant was never detained on unclear basis.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

1 The applicant arrived in the State in 2003 from Pakistan. He had work permits for limited periods, firstly up to June 2004, then from February to April, 2006; then from May, 2006 to May, 2007;from September to December, 2008; and finally from July to November, 2010. Thereafter however, he has been unlawfully present at all times.

2 A first deportation order was made against the applicant on 19th February, 2013.

3 The applicant was arrested and detained on foot of a deportation order on 19th April, 2013. His response to that development was to apply for asylum on 20th April, 2013. That application resulted in the revocation of the deportation order and the release of the applicant.

4 The application for asylum was refused by the commissioner and, on appeal, by the tribunal, on the basis of a lack of credibility on the part of the applicant.

5 On 28th January, 2014, he applied for subsidiary protection.

6 On 26th January, 2015, the applicant's solicitors wrote to the Minister and the commissioner, withdrawing the application for subsidiary protection and applying for leave to remain. Mr. Conor Power S.C. (with Mr. Paul O'Shea B.L.) on behalf of the applicant submits that this step was taken on the understanding of the applicant's solicitors that the policy was that such an application for leave to remain would be granted. If there was such an understanding, it was a unilateral one and not something that can visited upon the Minister.

7 On 14th April, 2015, the applicant completed and submitted a form entitled ‘ Withdrawal of Application for Subsidiary Protection’.

8 On 6th August, 2015, the Minister refused the application for subsidiary protection (a formal requirement where it has been withdrawn) and made a proposal to make a deportation order.

9 The second deportation order was made on 1st December, 2015, together with a refusal of the leave to remain application.

10 On 15th January, 2016, the applicant requested revocation of the deportation order, and contended that he was being treated differently from ‘ many persons in a like circumstance’. That correspondence confirmed that the advice to withdraw the application for subsidiary protection came from his solicitor and a number of members of his community.

11 On 29th June, 2016, the applicant sought to re-enter the subsidiary protection process.

12 On 11th July, 2016, the Minister referred that correspondence to the Commissioner who informed the applicant that he had no authority to reopen the process.

13 On 27th September, 2016, the applicant was arrested and detained by the GNIB on foot of the deportation order.

14 Simultaneously, the Minister wrote on 27th September, 2016, refusing the s. 3 (11) application. At 4.15 pm on 27th September, 2016, the applicant brought an Article 40 application [2016 No. 1053 S.S.] seeking an inquiry into his detention. The order directing an inquiry was granted, and ultimately the applicant was released on bail. The ex parte application was brought before Moriarty J. on 27th September, 2016; the substantive hearing was assigned to Twomey J. on 30th September, 2016, and then due to scheduling commitments was reassigned to MacEochaidh J. At the time of the making of the present application for leave to seek judicial review, the Article 40 inquiry was ongoing.

15 When the application for leave to seek judicial review of the s. 3 (11) decision and the present proceedings came before me, I directed that the respondents be put on notice and I have now also heard from Ms. Marjorie Farrelly S.C. (with Mr. Anthony Moore B.L.) on their behalf.

16 The substantial grounds test applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and I have had regard to the law in relation to that test including McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 as approved in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 395.

Section 5 of the Immigration Act 2000 cannot be circumvented by reframing a case as declaratory

17 In the applicant's amended statement of grounds as filed, eight separate reliefs are sought. Leaving...