Ervis Troci and Another v The Minister for Justice & Equality and Ors

• Jurisdiction: Ireland
• Judge: MR JUSTICE DANIEL O'KEEFFE,
• Judgment Date: 07 December 2012
• Neutral Citation: [2012] IEHC 542
• Court: High Court
• Date: 07 December 2012

[2012] IEHC 542

THE HIGH COURT

Record No. 1054 J.R./2011

Troci & Healy v Min for Justice & Ors

JUDICIAL REVIEW

Between:/

ERVIS TROCI AND SHARON MARY HEALY

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE REFUGEE LEGAL SERVICE

NOTICE PARTY

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(11)

CONSTITUTION ART 41

CONSTITUTION ART 40

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

P (S)[SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 20.1.2012 2012 IEHC 18

S v MIN FOR JUSTICE & ORS 2002 2 IR 163

M (S) v MIN FOR JUSTICE & ORS UNREP SUPREME 3.5.2005 2005/37/7640 2005 IESC 27

J (V)[MOLDOVA] v MIN FOR JUSTICE UNREP COOKE HIGH 31.7.2012 2012 IEHC 337

ARTICLE 26 & THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360

OGUEKWE v MIN FOR JUSTICE & ORS 2008 3 IR 795

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 1

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 47

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 49

DERECI v AUSTRIA 2011 ECR I-000 C-256/11

CHARTER OF FUNDAMENTAL RIGHTS ART 51(1)

CHARTER OF FUNDAMENTAL RIGHTS ART 51

IMMIGRATION ACT 1999 S3(1)

LOFINMAKIN (AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 25.3.2011 2011/31/8648 2011 IEHC 116

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 21

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI 2012 QB 265

MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPARTMENT CASE C-434/09 5.5.2011

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 21

O & ANOR v MAAHANMUUTOVIRASTO 2013 2 WLR 1093

EEC DIR 2001/40 ART 1(3)

A (X)(AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.10.2011 2011/1/192 2011 IEHC 397

U (H) & ORS v MIN FOR JUSTICE UNREP CLARK 29.9.2010 2010/50/12611 2010 IEHC 371

OSHEKU & ORS v IRELAND 1986 IR 733

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

P (F) v MIN FOR JUSTICE 2002 1 IR 164

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

C (T) v MIN FOR JUSTICE 2005 4 IR 109

MARGINE v MIN FOR JUSTICE & ORS UNREP PEART 14.7.2004 2004/30/6912 2004 IEHC 127

A (A) v MIN FOR JUSTICE 2005 4 IR 564

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45

O (P U) & M (C) v MIN FOR JUSTICE UNREP MCDERMOTT 6.11.2012 2012 IEHC 458

S (B) & ORS v MIN FOR JUSTICE UNREP CLARK 13.10.2011 2011/45/12744 2011 IEHC 417

O'LEARY & LEMIERE v MIN FOR JUSTICE UNREP HOGAN 30.6.2011 2011/41/11934 2011 IEHC 256

O'LEARY & LEMIERE v MIN FOR JUSTICE 2013 1 ILRM 509 2012 IEHC 80

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

HUANG v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2007 2 WLR 581

VW (UGANDA) & AB (SOMALIA) v SECRETARY OF STATE FOR THE HOME DEPT 2009 IMM AR 436 2009 INLR 295

AGBONLAHOR v MIN FOR JUSTICE 2007 4 IR 309

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

ABDULAZIZ & ORS v UK 1985 7 EHRR 471

N v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2005 2 AC 296

S (B I) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

BOUCHELKIA v FRANCE 1997 25 EHRR 686

BOUJLIFA v FRANCE 2000 30 EHRR 419

SIVSIVADZE & ORS v MIN FOR JUSTICE UNREP HOGAN 26.4.2012 2012 IEHC 137

CONSTITUTION ART 15.2.1

EEC DIR 2004/38 ART 4(1)

M (M) v MIN FOR JUSTICE CASE C-277/11

IMMIGRATION LAW

Deportation

Judicial review - Certiorari - Leave - Deportation order - Application for revocation of deportation order - Leave to remain - Subsidiary protection - âÇÿEnmeshment' - Asylum application refused on negative credibility findings - Applicant married to Irish citizen - Right to respect for family life - Absence of insurmountable obstacles to couple enjoying family life in country of origin of applicant - Delay - Extension of time - Good and sufficient reason - Claim applicant had derivative rights as spouse of EU citizen - Principle of free movement - Right of Irish citizen to reside in State with spouse - Unmarried at time of asylum application - Subsidiary protection application refused - Proportionality - Whether respondent took account of all relevant factors - Whether personal rights weighed against interests of State - Whether EU law or domestic law applied - Whether applicant had derivative rights as spouse of EU citizen - Whether right to family life denied - Whether insurmountable obstacles to couple enjoying family life in country of origin of applicant - Whether good and sufficient reason for delay - S v Minister for Justice [2002] 2 IR 163l; SM v Minister for Justice, Equality and Law Reform [2005] IESC 27 ,(Unrep, Supreme Court, 3/5/2005); VJ (Moldova) v Minister for Justice and Equality [2012] IEHC 227, (Unrep, Cooke J, 31/7/2012); Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; Oguekwe v Minister for Justice. Equality and Law Reform [2008] IESC 25, [2008] 3 IR 795, Lofinmakin v Minister for Justice, Equality and Law Reform [2011] IEHC 116, (Unrep, Cooke J, 25/3/2011); S v Minister for Justice and Equality [2011] IEHC 417, (Unrep, Clark J, 13/10/2011) - XA v Minister for Justice, Equality and Law Reform [2011] IEHC 397, (Unrep, Hogan J, 25/10/2011); HU v Minister for Justice and Equality [2010] IEHC 371, (Unrep, Clark J, 29/9/2010) - AO & DL v Minister for Justice [2003] 1 IR 1; Pok Sun Shum v Ireland [1986] ILRM 593; Osheku v Ireland [1986] IR 733; O'Leary v Minister for Justice Equality and Law Reform [2012] IEHC 80, (Unrep, Cooke J, 24/2/2012); Sivsivadze v Minister for Justice and Equality [2012] IEHC 244, (Unrep, Kearns P, 21/6/2012) applied - Dereci v Bundesministerien fur Inneres (Case C-256/11),[2012] All ER (EC) 373; Zambrano v. Office National de L'Emploi [2012] 2 WLR 886; McCarthy v Secretary of State for the Home Department (Case C-434/09) (Unrep, ECJ, 5/5/2011); OSL v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] 2 WLR 1093 followed - Alli v Minister for Justice, Equality and Law Reform [2009] IEHC 5, [2010] 4 IR 45; O'Leary v Minister for Justice, Equality and Law Reform [2011] IEHC 256, (Unrep, Hogan J, 20/6/2011); Huang v Secretary of State for Home Department [2007] 2 WLR 581; VW(Uganda) and AB (Somalia) v Secretary of State for Home Department [2009] EWCA Civ 5, [2009] Imm AR 436; Agbonlahor v Minister for Justice, Equality and Law Reform [2007] IEHC 166, [2007] 4 IR 309 - R(Mahmood) v Secretary of State for Home Department [2001] 1 WLR 840; Abdulaziz v United Kingdom (1985) 7 EHRR 471; N v Secretary of State for the Home Department [2005] 2 AC 296; BIS (Sanni) v. Minister for Justice [2007] IEHC 398, (Unrep, Dunne J, 30/11/2007); Bouchelkia v. France (1997) 25 EHRR 686 and Boujlifa v France (2000) 30 EHRR 419 and R(Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 considered - SP v Minister for Justice and Equality [2012] IEHC 18, (Unrep, Cooke J, 20/1/2012) distinguished - Treaty on the Functioning of the EU 1958, art 21 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006) - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Constitution of Ireland 1937, Art 41 - European Convention on Human Rights 1953, art 8 - Leave granted (2011/1054JR - O'Keeffe J - 7/12/2012) [2012] IEHC 542

Troci v Minister for Justice and Equality

Facts: The applicants were husband and wife. The first applicant was originally from Albania whilst the second applicant was an Irish citizen. The former applied for asylum on the 26th June 2008 after entering the country some 8 months previous. He claimed that he feared persecution if returned to his native country due to a gang feud his father was involved in which had resulted in the murder of his cousin. His application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected on the basis of a lack of credibility. The first applicant was informed by writing of the outcome along with the options available to him including an opportunity to apply for subsidiary protection. He applied for subsidiary protection and leave to remain on humanitarian grounds. This was also refused and a deportation was subsequently made. The applicants were married in the state on 1st March 2011. The first applicant thereafter applied to the respondent to revoke the order. This was refused. These proceedings involved the applicants seeking leave to challenge the decisions made against them. An extension of time was granted by the court to do so as it had been made outside the time limit.

It was argued that because subsidiary protection application is part of the deportation process as opposed to the unified protection process, the first applicant had been unfairly disadvantaged. It was the case that if an applicant applied for subsidiary protection and was unsuccessful, he would lose his right to leave the state voluntarily. The respondent's conceded that there was an arguable point but argued that because there had been a delay in applying for subsidiary protection, leave should not be granted.

In relation to the deportation order, the applicant argued that proper consideration was not given to his right to a family life under Article 8 of the European Convention on Human Rights. The decision was made in February 2011 and the respondent had been given a letter in December 2010 stating that the applicants intended to marry in the near future. The respondent argued that it was unreasonable to suggest proper consideration wasn't given on the basis of only an intention to marry.

Held by O'Keeffe J that in relation to...