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

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 February 2021
• Neutral Citation: [2021] IEHC 76
• Docket Number: [2019 No. 267 JR]
• Date: 10 February 2021

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

RESPONDENTS

(NO. 4)

[2021] IEHC 76

Richard Humphreys

[2019 No. 267 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Richard Humphreys delivered on Wednesday the 10th day of February, 2021

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 partially dismissed the proceedings (which challenged the proposed deportation of the first applicant on various grounds, particularly, as eventually constituted, on the ground of his alleged paternity of the third applicant) and adjourned the balance of the case for further submissions.

2 In B.S. (India) v. Minister for Justice and Equality (No. 2) [2020] IEHC 401, [2020] 8 JIC 1701 (Unreported, High Court, 17th August, 2020), I dismissed the proceedings save in relation to para. 9 of the reliefs sought and under that heading granted a substantive injunction restraining the deportation of the first applicant pending a DNA test and any applications consequent on a positive result based on his claim to be the father of the third applicant. I noted at para. 52 of that judgment that “[t]he Minister doesn't accept the first-named applicant's paternity, implying that the whole thing is a scam. So it may turn out to be; one can't say at this stage”. Maybe it's just as well that I added that particular caveat.

3 In B.S. (India) v. Minister for Justice and Equality (No. 3) [2020] IEHC 485, [2020] 10 JIC 1202 (Unreported, High Court, 12th October, 2020), I granted the State leave to appeal to the Court of Appeal.

4 I am now dealing with the costs of the proceedings, but also with the aftermath of the DNA test results, which have recently come through and demonstrate that the first applicant is not the father of the third applicant, despite the previous repeated sworn assurances of the adult applicants to the contrary.

5 In respect of how to proceed with matters from here, I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicants and from Mr. John P. Gallagher B.L. (with Ms. Siobhán Stack S.C.) for the respondents. Having heard the matter on 18th January, 2021 I informed the parties of the order being made and indicated that reasons would be given later.

The applicants' false evidence and its ramifications for the proceedings

6 Mr. Gallagher suggested that it was open to the court to conclude that the “partial victory” of the applicants was “built on a fraudulent presentation of the case” and I am afraid that that is the only available conclusion, particularly having regard to the failure of the applicants to come forward with any explanation even at this late stage as to how they had sworn to a paternity which was falsified by a DNA test. All Mr. O'Shea could say was that the applicants instructed him that they were surprised and disappointed, that previous instructions had been given in good faith and that they claimed to be still living together as a couple. It goes without saying that one could not accept that the previous instructions were given in good faith in the absence of any attempt whatsoever to explain the contradiction between those instructions and the DNA test results. No fact has been averred to, or even put forward by way of instructions provided, on the basis of which it would make sense for the applicants to be either surprised or disappointed by the outcome. The applicants had time - a lot of time - to prepare their case, and in particular had time since the DNA result, if they...