F. O. (No. 2) v Minister for Justice and Equality and Others

JurisdictionIreland
JudgeMr. Justice Mac Eochaidh
Judgment Date21 May 2013
Neutral Citation[2013] IEHC 236
CourtHigh Court
Date21 May 2013

[2013] IEHC 236

THE HIGH COURT

[No. 355 JR/2013]
O (F) v Min for Justice & Ors (No 2)
JUDICIAL REVIEW

BETWEEN

F. O. (No. 2)
APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

IMMIGRATION ACT 1999 S3

RSC O.84 r20(3)

IMMIGRATION ACT 1999 S3(11)

E (O) & E (A H) v MIN FOR JUSTICE 2008 3 IR 760 2008/22/4761 2008 IEHC 68

BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

OGUEKWE v MIN FOR JUSTICE & ORS 2008 3 IR 795 2008/51/10890 2008 IESC 25

MAMYKO v MIN FOR JUSTICE & ORS UNREP PEART 6.11.2003 2003/33/8069

A (C R) v MIN FOR JUSTICE 2007 3 IR 603

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

Deportation - Deportation order - Injunction restraining deportation - Application for leave to appeal for Judicial Review - Absence of sufficient information about the applicant

Facts: The case emanated from an unsuccessful asylum application. Permission was refused to ignore a three options letter on the basis that judicial review proceedings had been instituted. No further applications were presented by the applicant and a deportation order was ultimately made. In this case the applicant sought leave to quash the deportation order and an injunction to restrain deportation on the basis that the order was made in the absence of sufficient information about the applicant which had been set out in a letter produced by the applicant”s solicitor after the deportation order was made.

The question before the court was whether the applicant had advanced substantial grounds for asserting that a deportation order made in the absence of relevant information was unlawful, where the information had been submitted after the order was made.

Mac Eochaidh J held that the fact the information had not been considered by the Minister before the deportation order was made was the fault of the applicant and her advisors, there was no obligation on the Minister to invite representations , E & Anor v The Minister for Justice, Equality and Law Reform [2008] IEHC 68 considered and distinguished.

No substantial grounds were advanced for contending that the decision was infirm, McNamara v An Bord Pleanála [1992] 2 ILRM 125 referred to.

1

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 21st day of May 2013

2

1. The applicant was recently the plaintiff in plenary proceedings where reliefs pertaining to, and seeking to restrain, the implementation of a deportation order were sought. By judgment of this Court of 9 th May 2013, the plenary proceedings were struck out as an unlawful collateral attack on a deportation order, the legality of which may only be questioned in judicial review proceedings instituted pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and O. 84 of the Rules of the Superior Courts.

3

2. The full background to the case is set out in the earlier judgment of the court and will not be repeated here. Insofar as it is relevant to these proceedings, it is recalled that following an unsuccessful asylum application, the applicant received a letter on 17 th September 2007, inviting her to: leave the country voluntarily; apply for subsidiary protection and/or leave to remain; or be deported. This is referred to as the 'three options' letter. Permission was sought by the applicant to ignore this letter because judicial review proceedings had been instituted. In my earlier ruling, I found that this was an inappropriate response to the three options letter. The applicant, notwithstanding the request, was not entitled to ignore that letter. (The judicial review proceedings challenging the negative asylum application terminated unsuccessfully in September 2009.)

4

3. Since 2007 no application for subsidiary protection or humanitarian leave to remain was made, no representations pursuant to s. 3 of the Immigration Act 1999 were submitted. A deportation order was ultimately made on 17 th January 2013 and communicated to the applicant by notice dated 31 st January 2013. In these intended judicial review proceedings, the applicant seeks leave to quash the deportation order, and an injunction restraining deportation. (The court was informed that an application for subsidiary protection and leave to remain were submitted to the Minister on May 10 th 2013)

5

4. The ground advanced in support of this application is that the deportation order was made in the absence of sufficient information about the applicant. The missing information is not particularised in the pleadings, and in the affidavit grounding the affidavit it is referred to as an absence of up-to-date information. (In accordance with O. 84, r. 20(3) this is a matter which ought to have been particularised, however briefly).

6

5. The additional material which ought to have been considered, according to the applicant, appears to be that identified in a letter written by the applicant's solicitor on 14 th February 2013, That letter is pivotal to these judicial review proceedings and so I set it out in full:

"The Repatriation Division"

7

Department of Justice and Law Reform

8

14-2-13

9

Re: Our Client Ms. F. O.

10

Dear Sirs,

11

We refer to our above named client and your letter dated 31-1-13 [ informing the applicant of the deportation order].

12

We are surprised to note our client received a deportation order in circumstances where no representations were made owing to there being extant judicial review proceedings at the time the three options letter was sent. We further note we wrote to you on 18 th September [07] copy enclosed [ that is the letter seeking to ignore the three options letter].

13

In these circumstances, please confirm within 7 days from the date hereof that you revoke our client's deportation order and allow our client to apply for subsidiary protection and leave to remain.

14

We would also advise our client has a history of significant medical problems including TB and Diabetes. In addition, our client recently underwent surgery to have a tumour removed from her spine and we have been advised that Cairn Bolger, Consultant Neurosurgeon who carried out the operation will be monitoring our client's progress.

15

We further advise our client has strong connections to Ireland, including an Irish Citizen sister and brother-in-law both living and working in the State. We further advise that our client is an aunt to three Irish Citizen Children and plays and important role in their lives.

16

If you require any further information please do not hesitate to contact the writer hereof.

17

Yours faithfully,

18

Burns Kelly Corrigan."

19

6. If that letter is pivotal, so is the response. On 18 th February 2013, the Repatriation Unit at the Irish Naturalisation and Immigration Service ("INIS") replied as follows:

"Burns Kelly Corrigan"

20

Dear Sir/Madam,

21

Re: Your Client F. O.

22

I am directed by the Minister for Justice and Equality to acknowledge receipt of your faxed correspondence dated 14 th February 2013 in relation to your above named client.

23

Referring to the matters raised within, please be advised that the contents have been noted. Your correspondence has been forwarded on to the relevant area for consideration. We are unable to provide your client with an undertaking in this case. Please be advised that your application is non-suspensive of the deportation order made in respect of your client.

24

The enforcement of the Deportation Order remains an operational matter for the Garda National Immigration Bureau (GNIB). Please advise your client to continue to meet the presentation requirements of GNIB.

25

Yours sincerely,

26

Repatriation Unit."

27

7. From this exchange of correspondence, some observations may be made. In particular, the new facts pertaining to the applicant's situation relate to her medical history and connections to Ireland, including the presence of close family members in the State. The letter from the applicant's solicitors constituted an application for a revocation of the deportation order pursuant to section 3(11) of the Immigration Act, 1999. It is of particular relevance that although an undertaking not to deport was not sought, the response by the INIS emphasised that no undertaking would be given and that seeking revocation of the deportation order under s. 3(11) of the Act did not suspend the order. In other words, the authorities made clear that the applicant might be deported at any moment notwithstanding the application for revocation of the deportation order.

28

8. It is common case the deportation order was made in the absence of the new information. The issue in this application for leave to seek judicial review is whether the applicant has advanced substantial grounds for contending that a deportation order made in the absence of relevant information is unlawful, where the information was submitted after the order was made.

29

9. Counsel for the applicant argues that the Minister for Justice and his officials, acting reasonably and fairly, ought to have noticed the absence of any submissions in support of an application to remain in the State and the absence of an application for subsidiary protection. In addition, these circumstances should have been considered against the existence on the file of a letter from the applicant's solicitor seeking permission to ignore the requirement that such submissions be made within 15 days of mid-September 2007. A fair-minded decision maker, it is said, would have reverted to the applicant and invited submissions and an application for subsidiary protection notwithstanding the passage of many years from when the applicant was informed that she could so act.

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10. In support of this general proposition, the applicant relies on the...

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