H.E. (Egypt) v Minister for Justice and Equality (No. 3)

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date13 December 2017
Neutral Citation[2017] IEHC 810
Docket Number[2017 No. 3 J.R.]
CourtHigh Court
Date13 December 2017

[2017] IEHC 810

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 3 J.R.]

BETWEEN
H.E. (EGYPT)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

(No. 3)

Asylum, Immigration & Nationality - Deportation order - Existence of new circumstance - Second judicial review - Re-entry into asylum system - S. 17(7) of the Refugee Act 1996

Facts: The applicant filed a second judicial review application to challenge the first named respondent's decision that had refused the applicant's application under S. 17(7) of the Refugee Act 1996. Leave had been granted to the applicant to contest the present application on limited grounds namely, for failure to give reasons and reliance on newspaper article. The applicant was released on bail following his arrest.

Mr. Justice Richard Humphreys refused to grant the desired relief to the applicant. The Court held that the applicant's bail, too, had come to an end. The Court pointed out that the decision of the first named respondent did not suffer from any infirmity as mere publication of the Home Office report would not give an entitlement to the applicant to re-enter the asylum process.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of December, 2017
1

The applicant was born in 1986 in Egypt. On the 8th October, 2013, he applied in Abu Dhabi for a visa to enter the U.K. to accompany his employer, a Saudi princess. The stamp on his passport exhibited in the proceedings indicated that he entered the U.K. at Gatwick on 30th October, 2013. His visa expired on 10th April, 2014. He arrived in Ireland, he says, on 1st August, 2014. On 22nd September, 2014, he gave notice of intention to marry a Central European woman. It is notable that he was in a position to get married within only a few weeks of arrival in the State.

2

On 6th October, 2014, he applied for asylum and claimed a risk of persecution in Egypt as a member of the Muslim Brotherhood. His ASY1 form says he is a supporter of President Morsi and a member of the Freedom Party. He did not return the asylum questionnaire and did not attend for interview on the 16th January, 2015. On 18th February, 2015, he was notified of the rejection of his claim and was given the opportunity to apply for subsidiary protection, which he did not take up. On 17th April, 2015, he was sent a letter notifying him that the Minister had refused a declaration of refugee status, and containing a proposal for a deportation order, with the opportunity to make submissions. No submissions were made and the letter was not called for. On 14th May, 2015, he married a Lithuanian woman. Again, it is notable that this woman was back in Lithuania the following month in June, 2015. She then died in a car accident in her home country.

3

On 29th May, 2015, a deportation order was made against the applicant. On 2nd November, 2015, he applied for residence on the basis of an EU marriage. That application was refused.

4

On 1st August, 2016, a Home Office report was published on the situation in Egypt. On 29th September, 2016, the deportation order was notified to the applicant. It has not been made clear why it was not notified for a lengthy period. Correspondence was issued on behalf of the applicant, dated 16th, 26th and 27th September, 2016. The Minister replied on 29th September, 2016, indicating that the correspondence would be treated as a s. 3(11) application, although no decision appears to have actually been made.

5

On 8th December, 2016, the applicant was arrested and detained in Cloverhill Prison. He applied on that date for permission to re-enter the protection process under s. 17(7) of the Refugee Act 1996 and relied on the Home Office report in that regard. On the same date, leave was sought from O'Connor J. in a first set of judicial review proceedings H.E. v. Minister for Justice and Equality [2016 No. 950 J.R.] The main relief was a declaration that to remove the applicant from the State while there was a pending s. 17(7) application would be unlawful. An interim injunction was granted. The leave application was opened and adjourned, although the order incorrectly says that leave was granted. On 8th December, 2016, the s. 17(7) application was refused. On 12th December, 2016 the interim injunction came back before the court in the Asylum List. MacEochaidh J. directed that leave be sought on notice and granted an order continuing the interim injunction.

6

On 13th December, 2016, a notice of motion was issued with a return date of 20th December, 2016. On the latter date the leave application came on for hearing on notice and the applicant was given bail. On 21st December, 2016, MacEochaidh J. gave judgment ( H.E. v. Minister for Justice and Equality (No. 1) [2016] IEHC 758), in which he refused leave because the s. 17(7) application had already been determined at first instance. He expressed disappointment that the relevant authority on the right to reside, namely S.H.M. v. Minister for Justice and Equality [2015] IEHC 829 [2015] 12 JIC 2115 had not been opened by Mr. Paul O'Shea B.L. on behalf of the applicant, and had only been drawn to the court's attention by Mr. David Conlan Smyth S.C. for the respondent. He also noted that the applicant had not sought the appropriate reliefs. That dismissal would have brought his bail to an end, but he was granted continuing bail until 23rd December, 2016. On the latter date the matter was relisted at Cloverhill Prison court, despite the fact that the applicant was on bail, for a pre-litigation injunction in anticipation of an intended action by way of a second judicial review. The affidavit for the purposes of the application on that date was not filed and no record number, even an I.A. number, was ever obtained. An undertaking not to deport the applicant until 11th January, 2017 was given and he was given continuing bail in anticipation of the second judicial review, namely the present proceedings.

7

On 3rd January, 2017 the present proceedings were opened ex parte before Haughton J. and adjourned to 13th January, 2017, being listed for mention in the meantime on 11th January, 2017. On 13th January, 2017, the leave application and injunction were listed for hearing and were adjourned. They were part heard on 17th January, 2017 by MacEochaidh J., at which point the applicant's counsel said that the applicant wanted a reference to the CJEU. The matter was listed again on 26th January, 2017, when MacEochaidh J. was unavailable. On 22nd February, 2017 the respondents were granted the costs of the application for the injunction in the intended action. The leave hearing in the present application was completed and leave was granted on a limited basis for relief D1, on grounds E1 to E8, on the basis that the wording of the grounds would be revised. Submissions were then exchanged regarding the wording of the requested reference.

8

On 24th March, 2017, MacEochaidh J. gave a further judgment, H.E. v. Minister for Justice and Equality (No. 2) (Not circulated, 24th March, 2017), in which he revised the leave order and limited the relief to grounds E1 to E3 after receiving an amended statement of grounds and further submissions. He refused a reference because he held there had been a meaningful assessment of the claim under s. 17(7). He rejected the argument that the applicant could rely on their subsequent EU law points in those circumstances, and he continued the order restraining deportation on the applicant's undertaking to report to the GNIB. The note of the judgment ends by saying that the court is refusing leave, but it is clear from the order that the intention was that leave was only being refused on certain aspects, having been granted on other aspects.

9

On 25th April, 2017, an amended statement of grounds was delivered. The matter was mentioned again in court on 12th July, 2017, and an amended statement of opposition was filed on 20th July, 2017. The matter was then in the list to fix dates for 30th July, 2017 when a date of 13th October, 2017 was fixed. It now appears that the...

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