H v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 09 December 2019
• Neutral Citation: [2019] IEHC 836
• Date: 09 December 2019
• Docket Number: [2019 No. 458 JR]
• Court: High Court

[2019] IEHC 836

THE HIGH COURT

Max Barrett

[2019 No. 458 JR]

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AS AMENDED

BETWEEN

H

APPLICANT

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Order of certiorari – Deportation order – Permission to remain application – Applicant seeking an order of certiorari quashing the decision of the respondent to make a deportation order in respect of the applicant – Whether the applicant’s application for permission to remain ought to be remitted to the respondent for fresh consideration

Facts: The applicant applied to the High Court seeking: (a) an order of certiorari quashing the decision of the respondent, the Minister for Justice and Equality, of 24.05.2019 to make a deportation order in respect of the applicant; and (b) an order directing that the applicant’s application for permission to remain be remitted to the Minister for fresh consideration. The grounds upon which the reliefs aforesaid were sought were twofold, being, per the Statement of Grounds: “A. In requiring that the Applicant prove ‘with certainty’ that he was ordinarily and continuously resident in the State [during a certain period]...the Respondent imposed an unreasonable and unlawful standard of proof in relation to this central issue. The Respondent’s failure to determine this issue on a balance of probabilities basis renders the deportation order decision invalid. B. The Respondent acted unreasonably and irrationally in finding [that] ‘the doubts which exist in relation to [the Applicant’s] continuous residence in the State at all times since March 2011 are so great that the benefit of the doubt cannot reasonably be applied in [the Applicant’s] favour’. In circumstances where the Respondent’s doubts were based solely on Facebook photos uploaded by the Applicant during the relevant period, an issue fully explained by the Applicant, the Respondent’s finding in this regard was unreasonable and irrational.”

Held by Barrett J that the appropriate standard of proof for the Minister to apply in relation to factual matters relevant to a decision on whether to make a deportation order is the balance of probabilities. Barrett J held that the Minister erred in law in requiring that the applicant prove “with certainty” that he was in Ireland at all times during a stated timeframe; the “with certainty” wording appeared in the Examination of File of 02.05.2019.

Barrett J held that applying the wrong standard of proof was so fundamental an error that the court did not see that it could do anything other than grant the order of certiorari sought and remit the matter to the Minister for fresh consideration.

Order granted.

JUDGMENT of Mr Justice Max Barrett delivered on 9th December, 2019.

1 The immigration history of Mr H, a non-EU national, is perhaps best detailed by way of the chronological summary that follows:

20.12.2010.	Mr H travels from a non-EU country to UK on a visa issued to him under a false identity.
07.03.2011.	Mr H arrives in Ireland.
16.06.2011.	Office of the Refugee Applications Commissioner (“ORAC”) makes an order for Mr H's Dublin II transfer to the UK.
20.07.2011.	Mr H fails to present to the Garda National Immigration Bureau (“GNIB”) for transfer to the UK.
28.03.2013.	Having accepted the processing of Mr H's claim due to the passage of time, ORAC recommends that Mr H not be given refugee status.
24.06.2013.	Refugee Appeals Tribunal (“RAT”) refuses Mr H's refugee status appeal.
21.08.2013.	Mr H applies for subsidiary protection.
27.08.2015.	ORAC notifies Mr H of its refusal of subsidiary protection.
14.09.2015.	Mr H attempts subsidiary protection appeal to the RAT.
25.10.2015.	Mr H attempts to take flight from Belfast to Birmingham and flees airport when approached by immigration officials.
02.05.2017.	Mr H attends RAT appeal hearing.
23.11.2017.	RAT refuses Mr H's subsidiary protection appeal.
06.02.2018.	Mr H's solicitors make representations under s.3 of the Immigration Act 1999.
11.02.2019.	Minister writes to Mr H's solicitors seeking explanation of photos on Mr H's Facebook page that were apparently taken in 2016.
28.02.2019.	Mr H's solicitors explain that Mr H had sought to establish on his Facebook page that he was somewhere where he was not.
07.03.2019.	Minister seeks further explanation re. Facebook issue.
28.03.2019.	Mr H's solicitors make further submissions and enclose evidence purporting to show Mr H's residence in Ireland since 2011.
12.06.2019.	Deportation order is communicated to Mr H, together with an Examination of File concluding that “it cannot be stated with certainty” that Mr H was resident in Ireland since 2011.
08.07.2019.	Mr H granted leave to challenge deportation order.
09.07.2019.	Mr H is arrested and remanded on burglary and theft charges.
01.08.2019.	Mr H released on bail and required to sign at Garda station daily in County Galway.
07.08.2019.	Mr H signs on with Gardaí in Galway but fails to present as required to GNIB in Dublin.
22.08.2019.	Mr H's solicitors write to GNIB seeking new presentation date.
23.08.2019.	Chief State Solicitor's Office (“CSSO”)

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