B.S.S. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 17 July 2017
• Neutral Citation: [2017] IEHC 463
• Docket Number: [2017 No. 334 J.R.]
• Court: High Court
• Date: 17 July 2017

[2017] IEHC 463

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2017 No. 334 J.R.]

BETWEEN

B.S.S. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND A.S.)

AND

A.S.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S.5 of Illegal Immigrants Trafficking Act, 2000 – S.3 (11) of Immigrations Act, 1999 – Deportation order – Birth of EU national child – Material change in circumstances

Facts: The second named applicant/father sought leave to apply for judicial review for the cancellation of deportation order made against the second named applicant. The second named applicant contended that there had been a material change in the circumstances, i.e. the birth of a child since the making of the deportation order by the first named respondent, and thus, the deportation order must fail. The second named applicant contended that the removal to the country of origin would constitute an infringement of the right of the first named applicant who was an EU national child. The first named respondent contended that there had been no material change in the circumstances since the making of the deportation order. The first name respondent also contended that no application was made by the second named applicant before the Court to extend time and no explanation was given as to why the time should be extended.

Ms. Justice O'Regan refused the application of the second named applicant. The Court held that though the deportation order was delivered on time, no application was filed by the second named applicant to extend time or grounds by which time might be extended. The Court found that the birth of the child was not a new fact, because when the deportation order was made, the first named applicant had already been born. Thus, it was not a matter that arose subsequent to the making of the deportation order and thus barred by s.5 of the 2000 Act. The Court noted that the rights of the first named EU national child would not be threatened as he remained in the custody of his mother. The Court held that no attempt was made to explain or suggest as to how the right of the first named applicant under the EU treaties would be infringed if there was the removal of the second named applicant to his country of origin.

JUDGMENT of Ms. Justice O'Regan delivered on the 17th day of July, 2017

1 This is an application for leave to apply for judicial review which is made on notice to the respondent.

2 Prior to the processing the within leave application an application for an injunction was processed before me and on 26th April, 2017 when I refused an injunction. That order was appealed to the Court of Appeal and I have been advised that the Court of Appeal had made an injunction pending the leave application. Accordingly the only issue now before this Court is as to whether or not to grant leave to the applicant as the issue of the injunction is not before me.

3 In the statement of grounds of 21st April, 2017 the relief sought is a declaration that the implementation of the deportation order issued in respect of the second named applicant at this juncture would be unlawful together with injunctive relief. Within the grounds it is complained that the execution of the deportation order prior to a decision being made in respect of the application to revoke the deportation order would be unlawful. In turn the application to revoke was processed by way of a solicitor's letter of 13th April, 2017. In that communication the solicitor indicated that the second named applicant was the parent of a Polish citizen child, the first named applicant born on 30th September, 2016. This, it is alleged, constitutes a material change in circumstance since the making of deportation order. Thereafter the letter makes reference to the European Court of Justice decision in Zhu and Chen (C-200/02). In that case the mother secured a right of residence as otherwise it would deprive her young child of her right to reside in the UK. It is asserted on behalf of the second named applicant that a similar provision prevails and his removal to his country of origin would be such as to constitute an identical infringements of the rights of his EU national child. On this basis it is requested that the Minister reconsider his decision to deport the second named applicant.

4 The respondent is resisting the granting of leave to the applicant on the basis that the purpose of the application is strike down the deportation order, that in fact there has been no material change in circumstances or any event since the making of the deportation order. It is argued that in substance the proceedings comprise a collateral attack on the deportation order and therefore are captured by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 as amended. The respondent further argues that there is no application before this Court to extend time and no explanation as to why time should be extended. In this regard it might be noted that at the hearing of the injunction application before me on 26th April, 2017 the respondent did in fact raise the s. 5 issue and notwithstanding this although further submissions have been filed and an additional affidavit has been filed on behalf of the applicants, the respondent is correct is asserting that no application to extend time or grounds by which time might be extended have been furnished.

5 Unfortunately at the hearing of the leave application the applicant conflated the application for leave with an application for an injunction in that the applicant relied on several decisions where an injunction was afforded however in those decisions an injunction was considered entirely independently of the leave application (see PBN v. NJU [2014] IESC 9, A.O. v Minister for Justice, Equality and Law Reform (No. 3) [2012] IEHC 104, C & Ors. v. MJE & Ors. [2015] IECA 167, IRM & Ano. v. MJE & Ors. ...