Fitzpatrick and Fitzpatrick v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 26 January 2005
• Neutral Citation: [2005] IEHC 9
• Court: High Court
• Docket Number: [No. 539 JR/2003]
• Date: 26 January 2005

[2005] IEHC 9

THE HIGH COURT

[No. 539 JR/2003]

FITZPATRICK v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

PHILIP FITZPATRICK AND CLAUDIA FITZPATRICK

APPLICANTS

- AND -

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1 2003 31 7267

OSHEKU v IRELAND 1986 IR 733

POK SHUN SUN v IRELAND 1986 ILRM 593

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

MAHMOOD v HOME SECRETARY 2001 1 WLR 840

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(11)

KEEGAN, STATE v STARDUST COMPENSATION TRIBUNAL 1986 IR 642

FAJUJONU v MIN FOR JUSRTICE 1990 2 IR 151

IMMIGRATION AND ASYLUM

Deportation

Revocation - Change of circumstances - Marriage to Irish citizen - Refusal to revoke deportation order - Whether applicant had constitutional right to society of spouse - Proportionality - Whether legitimate interests of state an adequate justification for power to exclude person who was not entitled to be in State - Test of 'anxious scrutiny' - Whether reason given for rejecting application to revoke deportation order was logically connected to discretion being exercised - Certiorari granted

the applicants applied for judicial review to quash a decision of the respondent whereby he refused to revoke a deportation order in respect of the second applicant on the basis that the respondent had failed to specifically address the impact of a refusal on the first applicant’s marital circumstances, being married to the second respondent, and that the decision lacked proportionality and was irrational. The respondent gave as his reason for so refusing was that the applicants had not resided together as a family unit for an appreciable period of time since the date of the second application’s deportation.

Held by Ryan J in quashing the decision that:

1. it was irrational and in breach of fair procedures.

2. That, on the facts, the martial situation of the first applicant had been considered by the respondent and the decision was a proportionate one to the other policy issues to be addressed therein.

3. That, as a general proposition, unmeritorious or reprehensible behaviour by an applicant could not be a bar to relief.

4. That if a decision was not supportable on grounds of rationality, an applicant would be entitled to relief ex debito justiciae.

5. That administrative decisions were required by law to be the outcome of a process of reasoning based on relevant facts and the reasons on which the decision was founded had to be logically connected to the power or discretion being exercised.

6. That there was no logical connection between the reason advanced by the respondent for the refusal and any legitimate consideration of the application and the failure of the respondent to take into account the period during which the applicants lived together as a married couple in the State was indefensible for being in the teeth of plain reason and common sense.

Reporter: P.C.

Mr. Justice Ryan

1 This is an application for judicial review to quash a decision of the respondent made on or about the 3rd July, 2003, whereby he refused to revoke a deportation order in respect of Claudia Fitzpatrick, the second applicant. Leave was granted by the Supreme Court on the 7th October, 2004.

2 The applicants challenge the decision on three grounds. First, they contend that the Minister did not take into account, as he was obliged to do, the impact of a refusal on Mr. Fitzpatrick's marital circumstances. They contend that as an Irish citizen, he has rights arising from his married state which enjoy constitutional protection and a refusal was bound to have detrimental consequences for the relationship. This circumstance, they submit, required to be specifically addressed in the decision-making process. Secondly, it is claimed that the decision lacked proportionality in that there was a gross imbalance between the interest to be served by a refusal and the severe repercussions for the two applicants and particularly Mr. Fitzpatrick. Thirdly, the decision is condemned as irrational on traditional Wednesbury/Keegan principles. Alternatively, the refusal does not measure up to the sliding scale of the later"anxious scrutiny" test.

3 The applicants do not challenge the making of the deportation order, dated 25th April, 2002.

4 The first applicant, Mr Philip Fitzpatrick was born on the 10th October, 1965, in Dublin and he works as a telephonist with Aer Rianta at Dublin airport.

5 The second applicant, Claudia Fitzpatrick, is a Romanian national who was born Claudia Uilacan on 21st February, 1966. She married Nicolae Pasculie in Romania and took the married name Claudia Pasculie. She subsequently divorced Mr Pasculie in Romania.

6 In or about December 1999, the second applicant came to Ireland using the false name Angela Gianluca and, claiming to be an Italian, she worked illegally in the State.

7 On the 24th January, 2000, she applied for asylum, using the name Claudia Pasculie. However, she did not attend for interview and the application was refused. Following further administrative processes, a deportation order was made on the 25th April, 2002, in respect of Claudia Pasculie. Whilst the second applicant contends that she was not actually aware of the deportation order she expressly accepts that she is fixed with constructive notice of it having regard to the terms of s. 6 of the Immigration Act,1999, as amended.

8 The applicants met in Dublin in November, 2001 and lived together from March, 2002 until the deportation of the second applicant on the 14th March, 2003. Documentary material establishing that they were living together are in the names Philip Fitzpatrick and Angela Gianluca.

9 The applicants married on the 11th November, 2002. On or about the 14th November, 2002, they submitted an application on behalf of Claudia Fitzpatrick to be allowed to remain in Ireland on the basis of the marriage. On this occasion, the previous name given was Claudia Uilacan and in correspondence with the respondent's department it was stated that she had not previously applied for asylum. That was of course untrue.

10 In the course of Garda inquiries into an entirely unrelated matter, Claudia Fitzpatrick was arrested and questioned at Donnybrook Garda station on the 12th March, 2003. Those inquiries terminated without charge but, in the course of the investigation, information came to light about her identity and status. The result was that she was arrested by an immigration officer on her release from Garda custody and it became clear to the Department that Claudia Pasculie and Claudia Uilacan and Claudia Fitzpatrick were one and the same person. On the 14th March, 2003, the deportation order previously made on 25th April, 2002, was enforced and Mrs Fitzpatrick was deported to Romania.

11 As stated in the introduction, there is no challenge to any of the events up to and including the deportation. The case concerns the events subsequent to her enforced departure in the respondent's consideration of the application to revoke the deportation order.

12 By letter dated 8th April, 2003, solicitors for the applicants wrote to the Principal Officer of the Immigration Division of the Department as follows: -

"Re: Our clients Claudia and Philip Fitzpatrick û Application for revocation of deportation order in relation to Mrs Fitzpatrick."

Dear Sirs,

13 We act on behalf of the above couple. Mr. Fitzpatrick is an Irish national and Mrs. Fitzpatrick is a Romanian national. She entered Ireland in or about December 1999. She then made an application for refugee status under the name of Claudia Pasculie which was her name at that time. We are instructed that she was divorced in Romania. Her birth name was Claudia Uilacan. We understand that she entered the jurisdiction under a false name of Angela Gianluca. We are instructed that she was working in Ireland under that name at St. Stephen's Green Hotel.

14 We are instructed that Claudia Fitzpatrick met Philip Fitzpatrick in November 2001 and got married in November 2002. They then made an application for residency on the basis of their marriage. They received no response to that application and they then attended at Colgan & Co Solicitors who made representations on their behalf. It appears from the documents I have received from Colgan & Co Solicitors that there was no response to the letter to Lisa Croker dated the 30th of January, 2003. We are instructed that paragraph 2 of that letter is incorrect.

15 We would ask the Minister to revoke the deportation order in relation to our client so that she can apply for a visa to re-enter Ireland to be with her husband. We make this application in light of Article 41 of the Constitution which states, "the State recognises the family as the primary and fundamental unit group of society and as a moral institution processing inalienable and imprescriptible rights antecedent and superior to all positive law". Article 41 also says, "the State, therefore guarantees to protect the family in its constitution and authority as the necessary basis of social order and is indispensable to the welfare of the nation and the State". We would ask the Minister under s. 3(11) of the Immigration Act, 1999 to revoke the deportation order. There is a valid marriage in existence and we understand that the Minister's office has the documentation in relation to that marriage. If there is any other documentation required by the Minister please do note hesitate to contact us. Mr Fitzpatrick is presently employed as a Telephonist with Aer Rianta in Dublin Airport and is presently residing at 34 Shanagarry Road, Milltown, Dublin 6. We look forward to hearing from you shortly.

16 On the 16th June, 2003, the solicitors again wrote, this time...