C.E.S. (Nee I.) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 07 April 2005
• Neutral Citation: [2005] IEHC 104
• Court: High Court
• Docket Number: [2004 No.
• Date: 07 April 2005

[2005] IEHC 104

HIGH COURT

No. 351 JR/2004

S(CE)(née I) v Minister for Justice, Equality and Law Reform

Judicial Review

Between:

Corina Eugenia Spartariu (nee Ioja) and Ioan Spartariu

Applicants

And

The Minister for Justice, Equality and Law Reform

Respondent

CONSTITUTION

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

FITZPATRICK v MIN FOR JUSTICE UNREP RYAN 26.1.2005 2005/25/5246 2005 IEHC 9

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63

BOULTIF v SWITZERLAND 2001 33 EHRR 50 2001 2 FLR 1228

YILDIZ v AUSTRIA 2003 36 EHRR 32

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

FAKIH & ORS v MIN FOR JUSTICE 1993 2 IR 406 1993 ILRM 274 1992/7/1998

CROSSAN v COUNCIL OF KINGS INNS & ORS UNREP SMYTH 15.1.1999 1999/5/1179

PESCA VALENTIA LTD v MIN FOR FISHERIES & ORS (NO 2) 1990 2 IR 305

COUNCIL OF CIVIL SERVICE UNIONS v MIN FOR THE CIVIL SERVICE 1985 AC 374 1984 3 WLR 1174 1984 3 AER 935

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 11.5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION

Deportation

Family rights - Legitimate expectation -Whether deportation order breached applicants' right to reside as family unit -Whether sufficient justification for interference with constitutional rights -Whether decision proportionate, necessary in free and democratic society - Legitimate expectation of applicant - Whether deportation order spent - Arguable grounds -Whether respondent considered and balanced interests of applicants' rights and upholding immigration laws - Council of Civil Service Unions v Minister for the Civil Service [1985]AC 374 followed; Boultif v Switzerland (2001) 33 EHRR 1179 and Yildiz v Austria (2002) 36 EHRR 553 considered - Dublin Convention (Implementation) Order 2000 (SI 343/2000) -Immigration Act 1999 (No 22) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s5 - European Convention on Human Rights 1950 - Dublin Convention 1990 (2004/351JR - Peart J - 7/4/2005) [2005] IEHC 104, [2006] 2 IR 95

S(CE)(née I) v Minister for Justice, Equality and Law Reform

The applicants sought leave to apply by way of judicial review for an order of certiorari quashing the decision of the respondent refusing to revoke a deportation order made in respect of the first named applicant. The applicants submitted that the decision of the respondent to refuse to revoke the deportation order once he was notified of the first named applicant's marriage to the second named applicant, who had lawfully resided and worked in the State for a number of years, breached their rights, as provided for in the Constitution and the European Convention on Human Rights to reside in this State as a family unit. Furthermore, the applicants submitted that the first named applicant had a legitimate expectation that she would not be deported pending further medical review.

Held by Peart J. in granting leave to seek judicial review:

1. That it was at least arguable that the decision of the respondent infringed a right or rights protected by the Constitution and/or Convention relating to the family and the respondent failed to carry out the exercise of considering and balancing the competing interests and factors, in order to satisfy that the measure was necessary in a democratic society, and therefore proportionate to the objective to be achieved.

2. That it was at least arguable that the course of dealing which had taken place between the first named applicant and the Garda National Immigration Bureau was such as to five rise to a legitimate expectation that she would not suddenly and without warning be arrested and deported.

Reporter: L.O'S.

1 Mr Justice Michael Peart delivered the 7th day of April 2005 :

2 This is an application for leave to seek relief by way of Judicial Review an Order of Certiorari quashing the decision of the respondent refusing to revoke a deportation order in respect of the first named applicant which was communicated to the said applicant by letter dated the 13th November 2003, as well as an order of Mandamus directing the respondent to quash the said order.

3 The applicants also seek certain declaratory reliefs based on family and private rights, recognised in the Constitution and the European Convention on Human Rights.

4 In addition, certain declarations are sought, based on an alleged medical condition affecting the first named applicant, that to enforce the deportation order against her would breach her personal right to bodily integrity, her right to life and her right to be treated in a humane manner, as protected by the Constitution and the Convention. The grounding affidavit of the second named applicant refers to this medical condition as chronic anaemia, though the medical evidence fails to specify the particular ailment. Connected to this aspect of the application is an application for a declaration that that in the light of certain representations made to her by the respondent that she would not be deported until her medical condition stabilised, a legitimate expectation arises such as would be breached if the deportation order is enforced.

5 There is also relief sought by way of declaration that the deportation order itself is by now spent and is not enforceable against the first named applicant.

6 This application does not come within the ambit of s.5(2) of the Illegal Immigrants (Trafficking) Act, 2000, and accordingly the applicants must for the purpose of this application satisfy the Court that there are arguable grounds for seeking the reliefs set forth in the Statement of Grounds.

Factual Background:

7 The applicants are Romanian nationals. The first named applicant arrived in the State on the 1st August 2001 at Rosslare and applied for asylum on the 14th August 2001. She had a Romanian passport which contained a C-Schengan visa issued by Germany and valid for the period from 20th July 2001 until 18th August 2001.

8 She married the second named applicant in this State on the 13th November 2001. However this marriage was not notified to the respondent prior to the making of the deportation order in this case in respect of the first named applicant on the 23rd November 2001. The second named applicant was at that time lawfully residing and working in the State for about eight years.

9 Her application was treated as coming with the terms of the Dublin Convention, and therefore one more appropriately dealt with by the German authorities, and on that basis a deportation order was made. The decision to so treat the application was the subject of judicial review proceedings which were determined in October 2002. The said applicant also wrote to the respondent seeking to have the deportation order revoked on the basis that her marriage to the second named applicant, and applied for leave to remain here with him. This application was refused by letter dated 13th November 2003. This notification was almost two years subsequent to her application for revocation made at the end of November 2001.

10 Since December 2003 the first named applicant has been certified as unfit to travel as already referred to. Since the making of the deportation order she has been required to present herself in the usual way to the Garda National Immigration Bureau and has complied with these requests, but she states that in April 2004 when attending at GNIB pursuant to a letter requesting that she do so, she was first of all told that she would be asked to return again after her next medical appointment, that she was asked to wait until somebody could deal with her, and that having waited for several hours she was advised that she was being arrested and would be deported the following morning. An application was made to the High Court successfully on her behalf for an injunction restraining her deportation, pending determination of these proceedings.

Applicants' grounds for applying for the reliefs sought:

•Breach of private and family rights:

11 It is argued on behalf of both applicants that the respondent's decision to refuse to revoke the deportation order once he was notified of the applicants' marriage breaches their rights, both Constitution and Convention to reside in this State as a family unit. It is also argued that the respondent has failed to put forward any replying affidavit in which he might seek to justify the decision to refuse, and thereby satisfy the requirement to justify on some grounds considered proportionate what the applicants say is a breach of a fundamental right. In this regard the applicants submit that the reason set forth in the letter of notification to them dated 13th November 2003, namely "the interest of upholding the Immigration and Asylum laws in the State", is not a sufficient justification for the breach, and that the respondent's decision is therefore disproportionate.

12 Ms. Barrington on behalf of the respondent has submitted that while undoubtedly there are constitutionally recognised and protected family rights, this protection does not prevent the respondent where he chooses so to do, to deport one spouse in circumstances where the other spouse is permitted to remain. She has submitted that the respondent is entitled to enforce the immigration laws of the state even in circumstances where to do so results in the break up of the family unit. The Court has been referred to the judgments in Osheku v. Ireland [1986] I.R. 733, and Pok Shun Sun v. Ireland [1986] I.L.R.M. 593, both of which have been referred to by Ryan J. in his judgment in...