G.A.G. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 30 July 2003
• Neutral Citation: [2003] IESC 49
• Date: 30 July 2003
• Court: Supreme Court
• Docket Number: [S.C. Nos. 213, 266 and 214 of 2002]

[2003] IESC 49

THE SUPREME COURT

Keane, C.J.

Denham, J.

Murray, J.

McGuinness, J.

Hardiman, J.

Record No. 213/02

Record No. 266/02

Record No. 214/02

GONCESCU & ORS v. MIN FOR JUSTICE & ORS

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

BETWEEN

GEORGHE ADRIAN GONCESCU

Applicant/Appellant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT, IRELAND AND THE ATTORNEY GENERAL

Respondents

BETWEEN

VASILE SAVA AND FLORINA SAVA

Applicants/Appellants

-and-

THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM IRELAND & THE ATTORNEY GENERAL

Respondents

BETWEEN

RUZENA HRICKOVA TIBOR HRICKO SENIOR TIBOR HRICKO JUNIOR (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND RUZENA HRICKOVA) RUDOLF HRICKO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND RUZENA HRICKOVA)ROMAN HRICKO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND RUZENA HRICKOVA)MIROSLAV HRICKO (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND RUZENA HRICKOVA) AND DENISA HRICKOVA (A MINOR SUING BY HER MOTHER AND NEXT FRIEND RUZENA HRICKOVA)

Applicants/Appellants

GONCESCU & ORS v. MIN FOR JUSTICE & ORS

-and-

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM REFUGEE APPLICATIONS TRIBUNAL REFUGEE APPLICATIONS COMMISSIONER IRELAND AND THE ATTORNEY GENERAL

Respondents

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 45

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 59(1)

IMMIGRATION ACT 1999 S3(6)

QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE WIESLAW GLOSZCUK & ELZBIETA GLOSZCUK & ORS ECR 2001 I-06369

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3(3)

REFUGEE ACT 1996 S8

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 15

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 10(1)(E)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(5)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 1(2)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 45(3)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 45(4)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & THE CZECH REPUBLIC OF THE OTHER PART OJ L 360 31.12.1994 ART 59(1)

QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE JULIUS BARKOCI & MARCEL MALIK WIESLAW ECR 2001 I-06557

QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE ELEANORA IVANOVA KONDOVA ECR 2001 I-06427

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & POLAND OF THE OTHER PART OJ L 360 31.12.1994 ART 44(3)

EUROPE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EUROPEAN COMMUNITIES & THEIR MEMBER STATES OF THE ONE PART & POLAND OF THE OTHER PART OJ L 360 31.12.1994 ART 58(1)

VAN DUYN V HOME OFFICE 1974 ECR 1337

PEREIRA ROQUE V LIEUTENANT GOVERNOR OF JERSEY C-171/96 1998 ECR I-4607 1998 3 CMLR 143

REFUGEE ACT 1996 S9(4)

REFUGEE ACT 1996 S9(5)

REFUGEE ACT 1996 S9(3)

REFUGEE ACT 1996 (TEMPORARY RESIDENCE CERTIFICATE) REGS 2000 SI 346/2000

QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE ELEANORA IVANOVA KONDOVA ECR 2001 I-06427

REFUGEE ACT 1996 S9(2)(C)

REFUGEE ACT 1996 S9(2)(A)

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(11)

IMMIGRATION ACT 1999 S3(5)(A)

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

CILFIT & ANOR V MIN FOR HEALTH 1982 ECR 3415

OSAYANDE & LOBE V MIN JUSTICE & ORS UNREP SUPREME 23.1.2003

IMMIGRATION ACT 1999 S3(3)(A)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 11

IMMIGRATION ACT 1999 S3(2)(E)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7(7)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 4

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 5

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 6

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 8

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 9

REFUGEE ACT 1996 S22

IMMIGRATION ACT 1999 S3(5)(B)

CRIMINAL ASSETS BUREAU (CAB) V KELLY 2002 3 IR 421

Synopsis:

IMMIGRATION

Judicial review

Leave - Self-employed Europe Agreement nationals - Establishment rights - Whether Europe Agreement entitled applicants to remain in state in face of deportation order to pursue application for establishment rights - Illegal Immigrants (Trafficking) Act 2000 section 5 - Europe Agreement article 45 (213, 214 & 266/2002 - Supreme Court - 30/7/2003)

Goncescu v Minister for Justice, Equality and Law Reform - [2003] 3 IR 442

The applicants were refused leave to apply for judicial review pursuant to s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000 in the High Court. The High Court certified that its decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal be taken. The questions of law concerned the position of self-employed Europe Agreement nationals. The basic question was whether it was compatible with the provisions on establishment set out in the Europe Agreement for the state to require a person who has been refused asylum in the state to make his application to carry on a business within the state from his home state.

Held by the Supreme Court (Keane CJ, Denham, Murray, McGuinness and Hardiman JJ) in dismissing the appeal that the Europe Agreement while entitling applicants to apply for establishment rights from their own country did not in any sense grant them a right to remain in the state in the face of a lawful deportation order for the purpose of pursuing an application for establishment rights. The procedures were compatible with the Europe Agreement.

1 Murray, J. delivered on the 30th day of July, 2003.

2 The Appellants in these three cases were refused leave to apply for judicial review pursuant to section 5 (2) (b) of the Illegal Immigrants (Trafficking) Act, 2000. The High Court, for the purposes of this appeal against its decision, certified pursuant to section 5 (3) (a) of the Act that the decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court.

3 This appeal is principally concerned with the questions of law so certified by the High Court.

4 These questions of law are as follows:-

5 (1) Where a Europe Agreement national enters the State for the purposes of seeking asylum and being unsuccessful and/or having no entitlement to make an asylum application in the State, is therefore required to leave a State and/or to be removed from the State, is it compatible with the provisions on establishment as set out in the Europe Agreement with Romania and the Europe Agreement with the Czech Republic for the State to require that person leave the State and make his application for permission to carry on a business within the State from his home state?

6 (2) Do the administrative arrangements for self-employed Europe Agreement nationals, for the time being in force in the State, nullify or impair the benefits accruing to the Applicant (s) under Article 45 of the Association Agreement made between the European Communities and their member states and Romania and the Czech Republic (The Association Agreements)?

7 (3) Did the Respondents apply the administrative arrangements for self-employed Europe Agreement nationals, for the time being in force in the State, to the Applicant(s) in such a manner as to nullify/impair the benefits accruing to him contrary to Article 59 (1) of the Association Agreement.

8 Of course these questions are not posed in the abstract and fall to be decided in the factual circumstances arising in each of these cases. Counsel appearing for all of the Applicants/Appellants (hereafter Appellants) in each case have relied on legal arguments which are common to each case.

Other Issues

9 In the case concerning the Hrickova family, other issues of law were argued in the appeal relating to the validity of the deportation orders made for the purpose of transferring their applications for asylum to another country pursuant to the provisions of the Dublin Convention. I address these issues later in the judgment after first of all dealing with the issues raised by the points of law as certified by the High Court.

The facts in Mr Goncesu's case:

10 The facts as found by the learned High Court Judge included that Mr Goncesu is a Romanian National, born on 7 ^th July, 1975 who arrived in this State on 2 ^nd June, 1997. He has applied unsuccessfully for asylum within the State. He was interviewed in connection with that application in November, 1998 following which his application for refugee status was refused. He appealed this decision to the Refugee Appeals Authority. This appeal was refused and he was so notified of this fact by letter dated March 9 ^th, 2000. By letter dated 30 ^th March, 2000 the Refugee Legal Service applied on his behalf for leave to remain in the State on humanitarian grounds. The application for...