Harish v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 December 2019
• Neutral Citation: [2019] IEHC 879
• Docket Number: [2019 No. 132 J.R.]
• Court: High Court
• Date: 10 December 2019

[2019] IEHC 879

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 132 J.R.]

BETWEEN

HARINI HARISH

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Deportation order – Judicial review – Article 40 of the Constitution – Applicant seeking certiorari of a deportation order – Whether the respondent fell into error in the manner in which he assessed/considered the applicant’s private life rights

Facts: The applicant, Ms Harish, arrived in the State from India on 10th December, 2014 on a student permission lasting one year. She then obtained a graduate student permission stamp 1G for a further year, which expired on 2nd October, 2016. From that point onwards, she lived illegally in the jurisdiction and worked illegally, contrary to the criminal law of the State. After a year of illegal presence in the State, the applicant then applied for a further permission on 4th September, 2017. She was informed that permission to remain (at that point in the process) had to be dealt with in the context of a proposal to deport, which proposal was made under s. 3 of the Immigration Act 1999 on 11th September, 2017. She then made submissions on foot of that proposal but a deportation order was made on 21st January, 2019. It required her to leave the State by 16th March, 2019, which she failed to do. Instead she applied for judicial review on 11th March, 2019 seeking certiorari of the deportation order. The questions presented by the case as set out in the applicant’s legal submissions were: “Did the respondent [the Minister for Justice and Equality] fall into error in the manner in which he assessed/considered the applicant’s private life rights such that the deportation order made in respect of the applicant should be quashed?” and “Did the respondent fall into error in failing to report a proportionality assessment pursuant to Article 8 (2) ECHR to the applicant in circumstances where she was, for a time, resident on foot of a graduate visa and/or failed to provide reasons as to why, in spite of the said graduate visa the applicant was still considered as being at all material times precarious in the State?”.

Held by the High Court (Humphreys J) that the applicant’s deportation did not breach art. 8 of the European Convention on Human Rights save in exceptional circumstances which did not arise for the simple reason that she was an unsettled migrant. Thus, Humphreys J held that, in any event, there was no actual breach of her rights; this follows from the Supreme Court decision in P.O. v. Minister for Justice and Equality [2015] IESC 64 per MacMenamin J, citing Nunez v Norway (Application no. 55597/09, European Court of Human Rights, 28th June, 2011) para. 70.

Humphreys J held that the appropriate order was that: (i) the application be dismissed; and (ii) the respondent be released from any undertaking not to deport the applicant.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of December, 2019

1 The applicant arrived in the State from India on 10th December, 2014 on a student permission lasting one year. She then obtained a graduate student permission stamp 1G for a further year, which expired on 2nd October, 2016. From that point onwards, she lived illegally in the jurisdiction and indeed worked illegally here, contrary to the criminal law of the State.

2 The applicant is thus an over-stayer; but contrary to some perceptions, over-staying is not a victimless wrong. This form of behaviour makes it more difficult for the State to grant similar student or temporary permissions to other persons who may apply in the future and who are by definition persons who are not before the court and whose interests therefore go unrepresented and unheard. Those interests are nonetheless very real and cannot be ignored. The integrity of the immigration system, as the applicant's counsel concedes here, includes the concept of the interests of other immigration applicants. Failure by the court to allow the Minister to enforce the requirement that temporary visitors must leave can only damage the rights and interests of persons downstream who are not currently before the court but who should not be regarded for that purpose as legally or constitutionally invisible. It is worth adding that the discounting into invisibility of the legitimate interests of unrepresented parties is one of the fundamental aberrations of a self-indulgent approach to adjudication that sees only rights rather than duties, and then only the rights of the particular litigant and not of wider society.

3 After a year of illegal presence in the State, the applicant then applied for a further permission on 4th September, 2017. She was informed that permission to remain (at that point in the process) had to be dealt with in the context of a proposal to deport, which proposal was made under s.3 of the Immigration Act 1999 on 11th September, 2017. She then made submissions on foot of that proposal but a deportation order was made on 21st January, 2019. It required her to leave the State by 16th March, 2019, which she failed to do. Instead she applied for judicial review on 11th March, 2019 seeking certiorari of the deportation order. In that regard I have received helpful submissions from Mr. Conor Power S.C. (with Mr. Ian Whelan B.L.) for the applicant and from Mr. Mark William Murphy B.L. for the respondent

Jurisprudential developments relevant to the case

4 4. A potted history of the slightly tangled recent jurisprudence on this issue will be of assistance in explaining how this matter is to be resolved.

5 On 14th November, 2016, I dismissed an application for leave to seek judicial review in respect of students who made the implausible submission that a student permission gave them settled status: see Rughoonauth v. Minister for Justice and Equality (No. 1) [2016] IEHC 656 [2016] 11 JIC 1414 (Unreported, High Court, 14th November, 2016).

6 On 15th December, 2016, the Court of Appeal decided the case of Luximon v. Minister for Justice and Equality [2016] IECA 382 [2016] 2 I.R. 725 and Balchand v. Minister for Justice and Equality [2016] IECA 383 [2016] 2 I.R. 749, which related to the manner in which private life should be considered in the context of renewal of permissions under the Immigration Act 2004.

7 On 23rd February, 2016, O'Regan J. in W.S. v. Minister for Justice and Equality [2017] IEHC 128 (Unreported, High Court, 23rd February, 2017) seemed to consider students to be settled migrants. Very unhappily, she arrived at that position because counsel failed to bring the decision in Rughoonauth ( No. 1) to her attention: see Rughoonauth v. Minister for Justice and Equality ( No. 2) [2017] IEHC 241 [2017] 4 JIC 2401 (Unreported, High Court, 24th April, 2017) at paras. 10-11.

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