[EA] and [LM] v The Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 20 December 2024
• Neutral Citation: [2024] IEHC 737
• Docket Number: [Record No. 2023/940JR]

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000

Between

[EA] and [LM]

Applicants

and

The Minister for Justice

Respondent

[2024] IEHC 737

[Record No. 2023/940JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Mark Heslin delivered on the 20th day of December 2024

Introduction

1 . In these proceedings the applicants challenge the decision made by the respondent on 17 July, 2023 to refuse to revoke deportation orders made on 27 October, 2017 in respect of each of them.

2 . In essence, the legal grounds relied upon by the applicants are, first, to assert that the decision was irrational and, second, to contend that the impugned decision constituted an interference with the applicants' rights to respect for their private lives under Article 8(1) of the European Convention on Human Rights. Whilst no concessions were made, Counsel for the applicants made clear that “ the major point is one of irrationality”.

3 . Before proceeding further, I wish to acknowledge the great assistance given by Mr. Rogers SC for the applicants and by Mr. Leonard BL for the respondent. Both Counsel furnished detailed written submissions in advance. These were supplemented by oral submissions of great clarity during the hearing. During this judgment I will refer to the principal submissions made by both parties.

Chronology

4 . Having carefully considered the pleadings, affidavits and exhibits, a chronology of facts emerges, which I propose to set out in conjunction with certain legal provisions and principles which seem to me to be of most relevance.

5 . The applicants are a married couple and are Nigerian nationals.

6 . Their claim that they arrived in Ireland on 28 May, 2022 is not disputed.

7 . The applicants' son was born in this State on 11 November, 2002. He is an Irish citizen and his birth pre-dated the 27 ^th amendment to the Constitution which was passed by referendum on 11 June, 2004.

8 . The applicants obtained an Irish passport for their son on 3 December, 2002 and it is not disputed that they returned to Nigeria shortly thereafter.

9 . The second named applicant claims to have returned to Ireland on 17 June, 2004 and left again for Nigeria on 8 July, 2004. The foregoing is not disputed.

March 2005 — IBC scheme application

10 . No issue is taken with the applicants' claim that they travelled again to Ireland together on 15 March, 2005.

11 . On 21 March, 2005, the applicants applied for permission to remain in Ireland under the ‘IBC/05 Scheme’ (‘IBC’ being a reference to “Irish born child”). The foregoing scheme enabled non EEA national parents of children born in this State prior to 1 January, 2005 to apply for permission to remain, based on parentage of Irish citizen child.

The applicants' address in the State

12 . The IBC/05 Scheme application requested (at para. c) the applicants' “current address” and (at para. h) asked “what other addresses in the State have you been resident at?”. The applicants supplied a single address in response to both questions. It is a matter of fact that this was the one and only address the applicants ever furnished to the respondent.

July 2005 – the applicants leave Ireland

13 . Before their IBC/05 Scheme applications had been determined, the applicants left Ireland, on 6 July, 2005 and returned to Nigeria.

Failure to notify the Minister

14 . The applicants acknowledge that they did not notify the respondent Minister of their departure from Ireland, in 2005.

1946 Order

15 . Article 11 (1) (a) to (d) of the Aliens Order 1946 [S.I. No. 395 of 1946] (the “1946 order”) provides:

“11.—(1) An alien shall comply with the following requirements as to registration:-

(a) he shall, as soon as may be, furnish to the registration officer of the registration district in which he is resident, particulars as to the matters set out in the Second Schedule to this Order, and, unless he gives a satisfactory explanation of the circumstances which prevent his doing so, produce to the registration officer, either a valid passport, or some other document satisfactorily establishing his nationality and identity;

(b) he shall furnish to the registration officer of the registration district in which he is resident particulars of any circumstances affecting in any manner the accuracy of the particulars previously furnished by him for the purpose of registration, within seven days after the circumstance has occurred, and generally shall supply to the registration officer all information (including where required by the registration officer a recent photograph) that may be necessary for maintaining the accuracy of the register kept under this Order;

(c) he shall, if he is about to change his residence, furnish to the registration officer of the registration district in which he is then resident, particulars as to the date on which his residence is to be changed, and as to his intended place of residence, and on affecting any change of residence from one registration district to another, within forty-eight hours of his arrival in the registration district into which he moves, report his arrival to the registration officer of that district;

(d) if at any time he is absent from his residence for a continuous period exceeding one month, he shall report to the registration officer of the district of his residence, his current address and every subsequent change of address, including his return to his residence…” (emphasis added).

Registration officer

16 . Reference to the “ registration officer” is a reference to the relevant member of An Garda Siochana. The applicants failed to furnish to the registration officer of the relevant district particulars of the matters set out in the second schedule to the 1946 order.

Requirement to provide address

17 . The second schedule of the 1946 order concerns “Particulars to be furnished on registration” and includes “6. Address of residence in the State”.

18 . The applicants inter alia (i) failed to provide to the registration officer the address of their residence in the State; and (ii) failed to give notice that they were leaving the State and would no longer be resident at any address in Ireland.

Breach of 1946 Order

19 . Having regard to the facts, I accept the respondent's submission that the applicants breached Article 11 (1) (a) to (d) of the 1946 order.

22 November 2005 – refusal of IBC/05 application

20 . By letters dated 22 November, 2005, the respondent Minister notified the applicants of the decision to refuse their IBC/05 Scheme applications. These letters were sent to the applicants at the one and only address supplied by them.

21 . The applicants acknowledge that they had not been continuously resident in the State following the birth of their son (a requirement for the IBC/05 scheme) and, hence, did not qualify for inclusion in the relevant scheme.

7 September 2006 – notice of proposal to deport

22 . By letters dated 7 September, 2006, the Minister gave notice of the proposal to make a deportation order against each of the applicants. These letters were sent to the address which the applicants supplied when making their IBC/05 scheme application.

Validly served

23 . I am satisfied that, as a matter of law, the 7 September 2006 letters were validly served on the applicants who had not complied with the notification obligations imposed by Article 11 of the 1946 order.

Not received

24 . However, as a matter of fact, these letters were not received by the applicants who left the State 14 months before the letters were sent. In other words, it is a matter of fact that they left the State over a year before the proposal to deport them was served. Thus, they were unaware of the proposal to deport them.

left / leave

25 . Given (i) the refusal of the IBC/05 application and (ii) the applicants' failure to given notice of their departure, the respondent had no reason to believe that the applicants had already left the State, and remained outside the State, when the Minister served notice of the proposal to make deportation orders which would require the applicants to leave the State.

26 . The foregoing is reflected in the respondent's letter 7 September, 2006 letter to each applicant, which began:

“I refer to the decision to refuse your application for leave to remain in the State under the revised arrangements for parents of Irish children born before 1 January, 2005, commonly referred to as the IBC05 Scheme.

As a result of the above decision, I am directed by the Minister for Justice, Equality and Law Reform to notify you that the Minister now proposes to make a Deportation Order in respect of you under the power given to him by s.3, Immigration Act, 1999 as you have no current permission to remain in the State. (For information I am attaching s.3 of the Immigration Act, 1999, as amended).

The three options now open to you are set out in detail below. It is important that you note that some of these options may involve the making of a deportation order and that you know what this entails. A deportation order will require you to leave this State and to remain outside the State thereafter. Moreover, you should be aware that regulations will be make (sic) under the European Communities Act, 1972, as amended, to give statutory effect to the European Union (EU) Directive 2001/40/EC which obliges each EU member state to mutually recognise and give effect to deportation orders issued in respect of their country nationals i.e. anyone who is not a national of any EU state. This means that a deportation order may also prevent you from entering another EU State in the future.

Options now open to you

Under section 3(4) of the Immigration Act, 1999, as amended, you must now choose one of three options explained below…” (emphasis added).

Reason for

27 . In circumstances where the respondent was not aware that the applicants had...