Goncescu -v- Minister for Justice Equality and Law Reform & ors, Sava -v- Minister for Justice Equality and Law Reform and ors, Hrickova -v- Minister for Justice Equaltiy Law Reform and ors, [2003] IESC 49 (2003)

Docket Number:213/02, 266/02. 214/02
Party Name:Goncescu, Minister for Justice Equality and Law Reform & ors, Sava -v- Minister for Justice Equality and Law Reform and ors, Hrickova -v- Minister for Justice Equaltiy Law Reform and ors
Judge:Murray J.
 
FREE EXCERPT

THE SUPREME COURT

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

Record No. 213/02

Record No. 266/02

Record No. 214/02Keane, C.J.

Denham, J.

Murray, J.

McGuinness, J.

Hardiman, J.BETWEENGEORGHE ADRIAN GONCESCUApplicant/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 SAVAApplicants/Appellants- and - THE MINISTER FOR JUSTICE EQUALITY & LAW REFORM IRELAND & THE ATTORNEY GENERALRespondentsBETWEENRUZENA 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

-and-

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

REFUGEE APPLICATIONS TRIBUNAL

REFUGEE APPLICATIONS COMMISSIONER

IRELAND

AND

THE ATTORNEY GENERALRespondentsJudgment of Murray, J. delivered on the 30th day of July, 2003.

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.

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

These questions of law are as follows: -

(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?

(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)?

(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.

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

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:

The facts as found by the learned High Court Judge included that Mr Goncesu is a Romanian National, born on 7th July, 1975 who arrived in this State on 2nd 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 9th, 2000. By letter dated 30th March, 2000 the Refugee Legal Service applied on his behalf for leave to remain in the State on humanitarian grounds. The application for humanitarian leave to remain was refused and on January, 17th, 2002, the Minister for Justice Equality and Law Reform (hereafter the Minister) made a deportation order in respect of Mr Goncescu. The deportation was duly notified to him by letter dated January 25th, 2002.

In the proceedings before the High Court Mr Goncescu sought to quash the deportation order on the grounds that he was entitled to exercise certain establishment rights arising from the agreement entered into between the European Communities and their Member States of the one part and Romania of the other part. (Hereafter the "Europe Agreement"). This Appellant, for the purposes of these proceedings, placed considerable reliance on his employment history in the State since his arrival. In November, 1999 he secured employment as a plasterer. At that time he was still pursuing his application for refugee status. The employment which he obtained in 1999 arose in circumstances where the Government had adopted a policy of allowing certain asylum seekers to seek employment in the State while their asylum claim was being processed. This policy was an exceptional measure at the time. It would appear that the policy was adopted in ease of the situation of certain asylum seekers since it applied at the time to applicants for asylum who had made their application before a certain date, whose applications were over twelve months old but had not been finally determined and who at the same time had complied with their obligations as an asylum seeker. An employer wishing to employ an asylum seeker to whom the policy applied was required to apply to the Department of Enterprise, Trade and Employment for a work permit. The Appellant was an asylum seeker who came within the terms of the policy and his employer, Chesterside Ltd, applied for work permit on his behalf. The work permit was granted and was valid from 10th November, 1999 to 9th November, 2000 and sanctioned his employment by Chesterside Ltd as a "specialist plasterer". The document also contained a certificate and a note to the following effect: -

"Certificate: -

This is to certify that the Minister for Enterprise, Trade and Employment permits the employment of the above-named alien by this employer. This permit is valid only for the particular employment stated and not for any other kind of work or any other employer"

Note: -

Should the employee concerned, for any reason, cease to be employed by the employer during the period of validity specified, this permit should be returned immediately to the Department of Enterprise, Trade and Employment.

His employment permit expired on 9th November 2000, some eight months after the refusal of a declaration for refugee status. From the date of refusal he was no longer an asylum seeker and therefore was not entitled to continue working. It appears that in practice the Department allowed such persons who had received permission to work to continue working until the expiry of their work permits. However, he continued working after November 9th, 2000 with Chesterside Ltd and with a subsequent employer even though he was no longer an asylum seeker and did not have a work permit.

The learned High Court Judge also found that prior to the making of the deportation order the Appellant's then legal advisors, the Refugee Legal Service, were in contact with the immigration division of the Department of the Minister, initially by telephone communication and later by a letter dated 30th April, 2001 purporting to give notice of the appellant's 'new employer'. The new employer was a company named Speedtech Interiors Ltd. At no stage had they sought or obtained a work permit in respect of the appellant. The Department were provided with a reference from that company dated 25th April, 2001 which stated as follows: -

To whom it may concern,

Mr Adrian Goncescu is currently working for this company as a plasterer. He has been in our employ for the past two months.

He has shown himself to be a diligent trustworthy worker and I see no reason why Mr Goncescu will not have a long relationship with this company. I have no hesitation in recommending him to you.

Lawerence McEvoy

Contracts Manager.

There was a question before the learned judge of the High Court as to whether the Appellant, at one period while he was working, was working as an employee or, as the Appellant himself asserted, as a self-employed person engaged by Speedtech Interiors Ltd as an independent contractor. It appears that the learned High Court Judge did not find it necessary to decide that matter because as a matter of law the appellant was not lawfully entitled to work either as an employee or as a self-employed person because of his status as an unsuccessful asylum seeker and the fact that he neither had a right to work letter or work permit on the one hand or a business permit on the other.

By letter dated 30th March, 2002 the appellant sought leave of the Minister to remain in the state on humanitarian grounds.

The learned High Court judge also found that other than the information contained in the letter dated 30th March, 2002 and the letter received from the Refugee Legal Service on 30th April, 2001, the Minister had no information concerning the appellant's work within the State (post-November 9th, 2000) until receipt of the letter dated 11th February, 2002 (the same date as these proceedings were issued). That letter states, inter alia: -

"We are instructed that our...

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