Gashi v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 03 December 2004
• Neutral Citation: [2004] IEHC 394
• Court: High Court
• Docket Number: 336JR/[2004]
• Date: 03 December 2004

[2004] IEHC 394

THE HIGH COURTS

336JR/[2004]

IEHC 394./[2004]

GASHI v. MINISTER FOR JUSTICE & ORS

JUDICIAL REVIEW

Between

ANITA GASHI, MUHAMET GASHI AND DURIN GASHI (SUING BY HIS MOTHER AND NEXT FRIEND ANITA GASHI)

Applicants

and

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

Respondents

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

LELIMO V MIN JUSTICE UNREP LAFFOY 30.4.2004

OSAYANDE & LOBE V MIN JUSTICE 2003 1 IR 1

MAHMOOD, R V SECRETARY OF STATE FOR HOME DEPARTMENT 2001 1 WLR 840

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

ROBERT & MURESAN V MIN JUSTICE UNREP PEART 2.11.2004

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

MALSHEVA & CLARE V MIN JUSTICE UNREP FINLAY-GEOGHEGAN 25.7.2003 2003/33/8051

Synopsis:

CONSTITUTIONAL LAW

Personal rights

Family - Definition of term “family”- Whether family rights under article 8 of European Convention of Human Rights similar to balancing exercise required where family rights guaranteed by Article 41 of Constitution are invoked - Whether length of time husband and wife reside together since their marriage legitimate factor to be taken into account by respondent - Whether husband should be allowed return to Ireland pending substantive hearing - R (Mahmood) v Home Secretary [2001] 1 WLR 840; A.O. and D.L. v Minister for Justice [2003] 1 I.R. 1 considered - European Convention on Human Rights Act 2003 (No 20) - Leave granted (2004/336JR - Clarke J - 3/12/2004) [2004] IEHC 394

Gashi v Minister for Justice, Equality and Law Reform

IMMIGRATION

Judicial Review

Application for leave - Deportation order - Standard of judicial scrutiny in cases where constitutional rights at stake - Whether interlocutory order should be made - Whether test similar to interlocutory injunction - O'Keeffe v An Bord Pleanala [1993] 1 I.R. 39 considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Leave granted (2004/336JR - Clarke J - 3/12/2004) [2004] IEHC 394

Gashi v Minister for Justice, Equality and Law Reform

The second-named applicant was Kosovan and had been deported from Ireland in May 2003. Thereafter the first-named applicant, and Irish citizen, travelled to Kosovo and married the second-named applicant in September. At this stage the couple had a child which was born in August, 2003. The applicants instituted proceedings seeking leave to bring judicial review seeking to challenge the refusal by the first-named respondent to revoke the deportation order in respect of the husband (the second-named applicant). In addition leave was sought in respect of granting the second-named applicant either a visa or leave to reside in the State. Furthermore leave was sought regarding a declaration in respect of the entitlement of the applicants to reside as a family under the Constitution and the European Convention on Human Rights Act, 2003. The basis for the decision of the Minister was that the wife and husband had not resided together for an appreciable period of time since their marriage.

Held by Mr. Justice Clarke in making the following order. In respect of the first two issues the applicants had failed to make to reach the necessary thresholds in order for leave to be granted. The Minister, in basing his decision on the fact that the wife and husband had not resided together for an appreciable period of time since their marriage, had failed to take into account other appropriate factors which he was arguably required to do by law. Leave would be granted in respect of this aspect. Interlocutory relief permitting the husband to return to Ireland pending the substantive hearing was refused.

Reporter: R.F.

JUDGMENT of

Mr. Justice Clarke

1 delivered on the 3rd December 2004.

2 1. This matter comes before the court as an application for leave to seek judicial review on notice to the respondents. The terms on which such leave are sought are as set out in the intended statement required to ground an application for judicial review dated 19^th April, 2004. At the hearing I was informed that an ex parte application for leave to seek judicial review had been moved in this case before Quirke J. on the basis that a decision such as that challenged here (that is to say a decision to refuse to revoke a deportation order) does not come within the category of orders or decisions set out in s. 5(1) of the Illegal Immigrants (Trafficking) Act, 2000 so as to require, amongst other things, an application on notice to the first named respondent for such leave. I am informed that Quirke J. expressed the view that it would be better that this application be brought on notice without expressing a concluded view as to whether notice was, as a matter of law, required. The question of whether this application comes within

3 s. 5 has the potential to remain relevant, however, by virtue of the requirement in s. 5(2)(b) that prior to granting leave in any case coming within that section, this Court is required to be satisfied that there are "substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed". However, for reasons which will become clear in the course of this judgment, it does not appear to me that the decision as to whether to grant or refuse leave in relation to any of the remedies sought or upon any of the grounds alleged turns, on the facts of this case, on the distinction in the threshold necessary to be crossed in order to be granted leave which threshold is, of course, harsher in cases to which s. 5 applies. I would, therefore, leave a consideration of whether a refusal to revoke a deportation order is a decision which comes within s. 5(1) to a case which turns upon that question.

4 The second named applicant ("the husband") is Kosovan. He is married to the first named applicant ("the wife") who is and at all material times was an Irish citizen. The third named applicant ("the child") is their child and is also an Irish citizen. The wife and child reside in Ireland. The husband is not permitted entry to Ireland for the purposes of reuniting with them.

5 The first named respondent issued a deportation order in respect of the husband on the 5^th February, 2002. On foot thereof, the husband was deported on the 16^th May, 2003. The child was born on the 14^th August, 2003. Thereafter the wife travelled to Kosovo and married the husband there on the 2^nd September, 2003. Both the wife and husband applied for revocation of the above deportation order but their application was refused by the second named respondent by decision dated 3^rd November, 2003. There is some controversy as to what occurred next and it is therefore necessary for me to set out in some greater detail the precise events that followed the initial refusal by the first named respondent of the application for revocation of the deportation order.

6 Roughly contemporaneous (on the 28^th October, 2003) with the application for revocation of the deportation order the wife on behalf of the husband, made an application for a visa. There was attached to that visa application a record number 1503187. It would appear that the visa application was refused. Thereafter on the 11^thDecember, 2003 the first named applicant wrote a letter which in its terms is stated to be

"an appeal in regards to my husband Muhamet Gashi's case:"

Reference No: 1503187

7 Refusal No: 373/12".

8 The respondent's case is that by virtue of the inclusion of the above two numbers and also the timing of the letter, the appeal is, in clear terms, an appeal in respect of the visa application. However a reading of the letter of the 11^th December, 2003 makes it clear that the reasons addressed in favour of the appeal in that letter are directed towards the issue of the fact that the wife and husband had not lived as husband and wife. In that context it must be noted that the reason given for refusal of the visa application was simply that there was a deportation order in force and that a visa could not therefore be granted. However the reason given for refusing to revoke the deportation order was that the wife and husband had "not resided together as part of a family unit for an appreciable period of time since the date of (their) marriage". It is thus clear that the substance of the letter of the 11^th December 2003 was directed towards the grounds contained in the refusal of the application for revocation of the deportation order rather than the substance of the ground contained in the refusal of the visa application.

9 The reason why this issue is of some importance concerns the implementation date of the European Convention on Human Rights Act,2003which came into force on the 1^st January, 2004. The appeal referred to above was determined by means of upholding the existing decision on the 3^rd February, 2004. If, therefore, these proceedings are properly a challenge to a decision refusing a revocation of a deportation order in February 2004 then the court must take into account the provisions of the 2003 Act in assessing the actions of the relevant State authorities. If, on the other hand, these proceedings can only properly be said to relate to a decision which had been taken in November 2003 then it seems to me that I would be required to follow the reasoning of Laffoy J. in Lelimo v. The Minister for Justice Equality and Law Reform (Unreported judgment delivered on 30^th April, 2004) in holding that at least insofar as substantive rights are concerned the above Act is not retrospective and, therefore, in reviewing the actions of the State authorities the court would not be entitled to take into account the provisions of that Act.

10 As this is an application for leave it seems to me...