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

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 August 2020
• Neutral Citation: [2020] IEHC 401
• Date: 17 August 2020
• Docket Number: [2019 No. 267 JR]
• Court: High Court

BETWEEN

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

AND

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

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENT

(NO. 2)

[2020] IEHC 401

Richard Humphreys J.

[2019 No. 267 JR]

THE HIGH COURT

JUDICIAL REVIEW

Injunctive relief – Deportation – DNA test – Applicant seeking injunctive relief – Whether claim was out of time

Facts: The first applicant was born in India. He resided unlawfully in the UK from 2004 to 2014 and was eventually arrested. When released on his own bond he absconded and came to the State, he claimed on 2nd January, 2015. He resided in the State illegally thereafter. He was eventually arrested. A deportation order was then made on 30th September, 2016. However, he evaded that order until April 2019 when he was arrested again. His arrest triggered a rash of applications on his behalf. The latest amended statement of grounds sought as substantive reliefs the following: (1) an interlocutory injunction in particular terms; (2) declaratory relief; (3) an injunction pending a determination of the proceedings; (4) further or other relief; (5) costs; (6) certiorari of the Immigration Act 1999 s. 3(11) refusal of 16th May, 2019; (7) an order that the application to revoke the deportation order be determined in accordance with law; (8) an injunction pending the determination of the challenge to the s. 3(11) decision; and (9) a substantive injunction which in effect restrains deportation until the applicants have had the opportunity to pursue the DNA test or alternatively to become married.

Held by the High Court (Humphreys J) that: (i) the claim for an injunction should be categorised as a collateral challenge to the deportation order, but one that was not out of time because the grounds of challenge arose subsequently to the order, and the challenge was raised within time (or at least within time as extended) of the grounds arising in the sense of the applicants being in a position to assert a right based on an ability to pursue a DNA test; (ii) on these facts, it was just and convenient to grant a time-limited injunction in order to give effect to the right of the child to assert an entitlement to the society of the putative father and the corresponding rights of the putative father and the mother to an opportunity to establish the putative father’s alleged genetic relationship with the child.

Accordingly, the order Humphreys J made on 30th July 2020 was as follows: (i) he refused the application to set aside the amendments to the statement of grounds; (ii) he extended time insofar as that was necessary regarding relief 9 of the final amended statement of grounds to the extent that it related to the issue of an opportunity to conduct a DNA test; (iii) he refused the applicants’ application to refer a question to the CJEU because the case did not come down to any necessary question of EU law, and because the question suggested by the applicants was implausible; (iv) he dismissed the proceedings except in relation to relief 9, insofar as that concerned the DNA test issue; (v) in relation to that issue alone he granted a substantive injunction restraining the deportation of the first applicant as follows: (a) the injunction will last until 5th October, 2020 unless a negative DNA test result is received before then; (b) if a DNA test is completed and submitted for analysis before 5th October, 2020, the injunction will continue until either there is a negative result or until 28 days following a positive result showing the first applicant to be the father of the third applicant; and(c) if the first applicant applies for permission to remain in the State within a period of 28 days following such a positive result the injunction would continue until 28 days following the determination by the first respondent, the Minister for Justice and Equality, of that application; (vi) conditions of the injunction will be: (a) continued presentation by the first applicant; (b) the applicants are to provide full information to the respondents as to the progress of the DNA testing; and (c) the applicants are to furnish written consent to the respondents to the effect that all information and results are to be furnished directly to the respondents at the same time as they are furnished to the applicants; (vii) he continued the first applicant’s bail for the duration of the injunction; (viii) the matter was adjourned to 17th August, 2020 for possible submissions on leave to appeal.

Proceedings dismissed in part.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17 ^th day of August, 2020

1 In B.S. (India) v. Minister for Justice and Equality (No. 1) [2019] IEHC 367, [2019] 5 JIC 1011 (Unreported, High Court, 10th May, 2019), I granted an interlocutory injunction against deportation pending the determination of the proceedings. I also partly dismissed and partly adjourned the proceedings as they then stood. I am now dealing with the balance of the claim for substantive relief.

2 The principal facts are set out in the (No. 1) judgment, but are worth recapitulating for clarity of understanding of the present stage of the proceedings. The first-named applicant was born in India in 1981. The second applicant was born in Romania in 1987. The first-named applicant resided unlawfully in the UK from 2004 to 2014 and was eventually arrested. When released on his own bond he absconded and came to the State, he claims on 2nd January, 2015. He resided in the State illegally thereafter.

3 The second-named applicant says she arrived in the State in June 2015 although she doesn't appear to have left any kind of paper trail for the early years of her alleged presence here.

4 When eventually arrested, the first-named applicant applied for asylum on 22nd July, 2015 but did not pursue that application, which was deemed withdrawn on 29th April, 2016. A deportation order was then made on 30th September, 2016. However, he evaded that order until April 2019 when he was arrested again.

5 The applicants claim to have met on 1st April, 2017 and to have been in a relationship since 15th April, 2017.

6 The second-named applicant only obtained a PPS number on 5th December, 2018 and the third-named applicant, who is said to be their child, was born on 18th January, 2019. The first-named applicant was named as the father on the birth certificate.

7 The first-named applicant's arrest in April 2019 triggered a rash of applications on his behalf, beginning with an application to revoke the deportation order submitted on 3rd May, 2019.

The first statement of grounds

8 The procedural history in this case is more complex than the norm. The first of six statements of grounds was filed on 7th May, 2019 the primary relief being an injunction restraining deportation until a decision was made on “an application currently pending” before the Minister. I granted an interim injunction on the same date and adjourned the leave application to 10th May, 2019.

The second statement of grounds

9 An affidavit of 9th May, 2019 exhibits a second statement in the form of a draft amended statement of grounds setting out a fairly minor amendment. A copy was then delivered purportedly allowed pursuant to an order of 10th May, 2019. However, the order of that date didn't allow the amendment. Rather, I granted leave in the 11 a.m. list and then on foot of strenuous submissions from the respondent on the basis that to apply the normal timescale to the proceedings would determine the effect in favour of the applicant, listed the matter by consent for substantive hearing at 2 p.m. on the same day.

10 I then gave the (No. 1) judgment dismissing certain grounds and adjourning other matters to the 20th May, 2019 and granting an interlocutory injunction. I gave liberty to the applicants to amend the proceedings and indicated that a s. 3(11) application under the Immigration Act 1999, if it was going to be made, should be made by 13th May, 2019.

11 Following the judgment, the first-named applicant made a s. 3(11) application on 13th May, 2019, notable because there is no reference in that application to any specific legal provisions and only general reference to EU Treaty rights and to the judgment of the CJEU in Gerardo Ruiz Zambrano v. Office national de l'emploi, Case C-34/09 (Court of Justice of the European Union, 8th March, 2011).

12 A further letter was sent regarding revocation which referred to arts. 8 and 13 of the ECHR, Article 40.1 of the Constitution (a point that was never subsequently pursued), art. 24 of the EU charter and art. 20 of the TFEU. No details were set out as to why deportation of the first-named applicant would breach any of those provisions.

13 On 15th May, 2019, an EU treaty rights application was made on behalf of the first-named applicant as a permitted family member. Large parts of the application were left blank including the immigration history, criminal record, and an account of the second-named applicant's movements and economic activity. On the same date, an application was made pursuant to the CJEU decision in Chen v. Secretary of State for the Home Department, Case C-200/02 (Court of Justice of the European Union, 19th October, 2004). The s. 3(11) application was refused on 16th May, 2019. The refusal notes at p. 2 state that “in the normal circumstances Mr. [S]'s outstanding immigration applications would be determined before dealing with his request to have the deportation order revoked … however, the Department is complying with the court's direction”.

14 On 17th May, 2019 the Department wrote referring to the Chen application and asking for DNA evidence. The letter set out a particular procedure and referred to a particular company as an example of the companies that apply the necessary standards, stating that “it is necessary that you use a court approved DNA service”. The...