A.B. (Albania) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2017
• Neutral Citation: [2017] IEHC 814
• Court: High Court
• Docket Number: [2017 No. 603 J.R.]
• Date: 21 December 2017

BETWEEN

A.B. (ALBANIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2017] IEHC 814

[2017 No. 603 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration and Nationality - S. 3(11) of the Immigration Act, 1999 - Revocation of deportation order - Amendment to the statement of grounds - Declaratory relief - Art.8 of European Convention on Human Rights (ECHR)

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent who had refused to revoke a deportation order made in respect of the applicant. The applicant contended that there were failures to properly consider the applicant's rights under Art. 8 of ECHR. The applicant contended that he was living with his brother and he had been dependent upon him. The applicant further argued that the respondent, while making the impugned decision, should have considered the factum of the applicant's dependency.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court found that there were contradictions in the applicant's submissions that were made before the respondent and the onus had rested upon the applicant to furnish full details in relation to his condition. The Court noted that since the respondent had furnished very little information, it would be inappropriate to make any finding of invalidity against the respondent's decision.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2017

1 The applicant, an Albanian national, was born in Kosovo, and came to Ireland on 21st December, 2011. He applied for asylum, an application which was rejected in due course. A proposal to make a deportation order was issued and representations were made by the Refugee Legal Service on 6th June, 2012, stating that he was residing with his brother. On 5th November, 2014, the Refugee Legal Service made further submissions, enclosing a letter from a Ms. Nancy Garvey, a retired primary teacher. That letter stated, contrary to the previous submissions, that the applicant has ' moved around quite a bit' and is ' semi-homeless'. Further representations were made on 20th October, 2016, by the Rev. John Rochford of the South East Refugee Information Centre. Those do not seem to be hugely material to the matters I have to decide.

2 A deportation order was made on 1st November, 2016, which is unchallenged. The analysis under art. 8 of the ECHR noted the contradiction between the original representations, which stated that the applicant was living with his brother, and subsequent representations indicating that he was living elsewhere and might be homeless. It noted significant omissions of material in relation to the brother.

3 On 24th April, 2017, the applicant went to a consultant psychiatrist. He was sent there by his solicitors because he told his solicitor he was depressed. It is accepted that the applicant's medical condition long predated this consultation. On 22nd May, 2017, the applicant submitted an undated medical report from the consultant psychiatrist which outlined his condition and treatment and noted that his brother was ' most supportive'.

4 On 21st June, 2017, the Minister refused the applicant's application to revoke the deportation order, which application had been made on 11th December, 2016. A further medical report was prepared in September, 2017, but is not relevant to the proceedings insofar as it had not been furnished to the Minister prior to the s. 3(11) decision, which the applicant now challenges. I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Mel Christle S.C. and Mr. Ray Walsh B.L.) for the applicant, and from Ms. Gráinne Mullan B.L. for the respondent.

Alleged failure to properly consider art. 8 of the ECHR

5 Mr. Conlon submits that there was a failure to properly consider art. 8 of the ECHR, particularly in the context where the applicant's brother is a recognised refugee living in Ireland and where the applicant is, it is said, wholly dependant on his brother. The context here is the obligation on an applicant to put forward material to the Minister to enable appropriate consideration to take place. It seems to me there were considerable failings in that regard. As noted above, the original submissions supplied indicated the applicant was living with his brother. That was then contradicted by further submissions, a contradiction which was highlighted in the analysis under s. 3(6) of the Immigration Act 1999. The process of making a s. 3(11) application was therefore a heaven-sent opportunity to clarify the situation given that the contradiction in submissions had been highlighted in black and white and discussed in some detail. However, the s. 3(11) submissions actually made did not take up that opportunity in any meaningful sense, but merely included a one-liner to the effect that the applicant was living with his brother. It seems to me that the Minister was entitled to the view that the details of private life, dependency and related matters are simply not spelled out by the applicant.

6 Separately, the fundamental problem for the applicant here in the context of a judicial review of a refusal to revoke an order is that he is not raising anything that was not there at the time of the original deportation order. I would broadly accept Mr. Conlon's...