B.S. (India) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 May 2019
• Neutral Citation: [2019] IEHC 367
• Court: High Court
• Docket Number: [2019 No. 267 J.R.]
• Date: 10 May 2019

[2019] IEHC 367

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2019 No. 267 J.R.]

BETWEEN

B.S. (INDIA), A.A.D.

AND

Z.S.S. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A.A.D)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Deportation – Injunction – EU treaty rights – Applicant seeking an injunction restraining deportation until a decision had been made on an application pending before the respondent – Whether the applications pending before the respondent disclosed a fair question to be tried

Facts: The first applicant, on 28th April, 2019, was arrested on foot of a deportation order. Proceedings were filed on 7th May, 2019, the primary reliefs sought being an injunction restraining deportation until a decision had been made on “an application currently pending” before the respondent, the Minister for Justice and Equality, declaratory relief and interim or interlocutory injunctive relief. An interim injunction was granted on 7th May, 2019. On 9th May, 2019, the first applicant signed the relevant form to apply for EU treaty rights. Ground 1 of the statement of grounds contended “the applications pending before the respondent disclose a fair question to be tried concerning the positon of the first-named applicant in the State and raised the real possibility that [the] first-named applicant may be granted residence in the State. The applicants have presented an arguable case for the revocation of the deportation order (either by way of discretion or by operation of law) and for the first-named applicant’s deportation to be revoked and/or the execution thereof to be postponed pending the consideration of that application and an intended application for residency for the first applicant.” In a similar vein, ground 5 alleged that “the balance of convenience rests with the grant of an injunction”. Ground 2 alleged that “the applicants are entitled to a decision upon the said applications in advance of the removal of the first-named applicant from the State”. Ground 3 contended that “while there is a public interest in the implementation of deportation orders there is also public interest in the protection of family life and the non-separation of families. There are no issues of national security, public safety or the prevention of disorder and crime in the instant case. In the circumstances, the deportation of the first-named applicant prior to a decision on the said applications is disproportionate”. Ground 4 contended that “the implementation of the deportation order at this juncture would lead to the sundering of the family unit and a serious disruption of the family and business activities of the EU national. Deportation, even on a temporary basis, would cause more than the ordinary disruption in being removed from a country in which the first applicant wishes to live. Deportation would visit irremediable damage on the family and in particular the second applicant will be required to stop working in order to care for the third applicant. Further there is an arguable case that deportation, even on a temporary basis, will interfere with the substance of the third applicant’s rights as a citizen of the European Union.”

Held by Humphreys J that one cannot generate a free-standing entitlement to substantive relief based purely on the balance of convenience – some more substantive entitlement based on what is just must be demonstrated. Humphreys J held that there is no entitlement not to be removed pending decisions on applications of this nature, one of which had not actually been made yet. Humphreys J held that he would dismiss the proceedings insofar as they were based on grounds 1, 2 and 5 of the statement of grounds.

Humphreys J held that, as far as the claim under the headings of grounds 3 and 4 was concerned, given that the questions arising including questions of EU law to which the answers may not be absolutely clear, he did not consider that he should make a final order without giving the parties an opportunity to make more detailed submissions on those specific questions (including whether art. 267 of the TFEU should be invoked), so he would adjourn that limited aspect of the case for a short period until 20th May, 2019. He held that the adjournment would be on certain terms and that the balance of justice and convenience and the test in Okunade v Minister for Justice and Equality [2012] IESC 49 favoured granting an interlocutory injunction restraining the respondent from deporting the first applicant until 20th May, 2019; on that date he would consider the question of whether a reference to the CJEU was necessary or appropriate.

Proceedings dismissed in part.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of May, 2019

1 The applicants are an Indian father, a Romanian mother, and their minor child born in the State. The first-named applicant was born in 1981. He lived in Dubai for an approximately three-month period in 1999 to 2000 and then returned to India. He then resided unlawfully in the UK from 2004 to 2014 and came to the State in the latter year by boat from Scotland. He resided in Ireland illegally thereafter.

2 The second applicant was born in Romania in 1987 and arrived in Ireland in June, 2015. She opened a food outlet or takeaway with substantial financial assistance from the first-named applicant's family. The respondent has not as yet had an opportunity to investigate her account of her economic activity. The applicants claim to have met on 1st April, 2017 and to have been in a relationship since 15th April, 2017. They lived together, it would appear, from about six months later. The first and second applicants are recorded as living at the same address on the third-named applicant's birth certificate.

3 The first-named applicant was arrested in 2015, whereupon he applied for asylum on 22nd July, 2015. He did not pursue that application, which was deemed withdrawn on 29th April, 2016. In June, 2016, a proposal to deport the first-named applicant was made. No response was provided to that. A deportation order was then issued under s. 3 of the Immigration Act 1999 on 30th September, 2016, and notified to the first-named applicant under cover of a letter dated 24th October, 2016.

4 The third-named applicant was born on 18th January, 2019 and as noted above, the first-named applicant was named as the father on the birth certificate. In a case such as the present one, the qualification for Irish citizenship is that the EU parent is legally present for three out of the previous four years before the birth. If the mother's account is accepted and if it is assumed that she was exercising EU treaty rights, that condition would appear to have been satisfied and thus it is very possible that the child is an Irish citizen by birth.

5 On 28th April, 2019, the first-named applicant was arrested on foot of the deportation order and at time of writing is detained in Cloverhill Prison. The detention order has been exhibited in the proceedings. The basis of arrest as set out in that order was failure to leave the State within the time specified in the deportation order. On 3rd May, 2019, application was made on his behalf to revoke the deportation order, the relevant statutory provision being s. 3(11) of the 1999 Act, although that is not in fact specified in the letter seeking revocation, nor indeed are the specific family rights by reference to art. 8 of the ECHR as applied by the European Convention on Human Rights Act 2003 or corresponding family rights under Articles 40 or 41 of the Constitution.

6 The present proceedings were filed on 7th May, 2019, the primary reliefs sought being an injunction restraining deportation until a decision has been made on ‘ an application currently pending’ before the Minister, declaratory relief and interim or interlocutory injunctive relief. An interim injunction was granted on 7th May, 2019. On 9th May, 2019, the first-named applicant signed the relevant form to apply for EU treaty rights, although at time of writing that has not actually been submitted.

7 On Friday 10th May, 2019, leave was granted in the 11 a.m. list (the ex parte list having been scheduled on the Friday of that week), and following strenuous and indeed persuasive submissions on behalf of the respondent to the effect that to apply normal time-scaling to the proceedings would in fact determine the event in favour of the applicant, the matter was listed for substantive hearing at 2 p.m. on that day by consent.

8 The first-named applicant says he intends to apply for EU treaty rights, although that appears to have been held up because the second-named applicant's passport was lodged with the Department of Foreign Affairs and Trade in order to apply for an Irish passport for the third-named applicant. It is accepted now by counsel for the respondent that the lack of an available passport for the second-named applicant is not a disqualifying problem that would prevent the making of an EU treaty rights application. For the purposes of the present judgment I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicants and from Mr. John P. Gallagher B.L. for the respondent.

Respondent's preliminary objections

9 The respondent offered essentially two overarching objections to the applicants” proceedings. Firstly, that the applicants” claims in relation to EU treaty rights are not justiciable...