I (P) & Others v Minister for Justice and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 11 January 2012
• Neutral Citation: [2012] IEHC 7
• Court: High Court
• Date: 11 January 2012

[2012] IEHC 7

THE HIGH COURT

[No. 875 J.R./2011]

I (P) & Ors v Min for Justice & Ors

BETWEEN/

PI AND EI (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND PI AND JNI (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND PI)

APPLICANTS

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

D (T) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.1.2011 2011 IEHC 37

RSC O.84 r20(7)(A)

RSC O.84

RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI 691/2011

RSC O.84 r20(7)

ADEBAYO & ORS v CMSR OF AN GARDA SIOCHANA 2006 2 IR 298 2006/1/163 2006 IESC 8

O (OC) & O (DT) (AN INFANT) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 22.11.2011 2011 IEHC 441

RSC O.84 r20(7)(B)

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88

RSC O.84 r20(8)

RSC O.84 r20(8)(A)

SUPREME COURT OF JUDICATURE ACT (IRL) 1877

RSC O.84 r20(8)(B)

J (P) v MIN FOR JUSTICE UNREP HOGAN 18.10.2011 (EX TEMPORE)

Z (S) v MIN FOR JUSTICE UNREP HOGAN 14.11.2011 (EX TEMPORE)

L (S) [NIGERIA] v MIN FOR JUSTICE & ORS UNREP COOKE 6.10.2011 2011 IEHC 370

A (BJS) [SIERRA LEONE] UNREP COOKE 12.10.2011 2011 IEHC 381

EEC DIR 2005/85 ART 3(3)

EEC DIR 2005/85 ANNEX I

EEC DIR 2004/83 ART 4(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

M (M) v MIN FOR JUSTICE (NO 1) UNREP HOGAN 18.5.2011 (EX TEMPORE)

IMMIGRATION ACT 1999 S3(1)

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010/50/12672 2010 IEHC 492

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

EMRE v SWITZERLAND UNREP ECHR 22.5.2008 (APPLICATION NO 42034/04)

EMRE v SWITZERLAND (NO 2) UNREP ECHR 11.10.2011 (APPLICATION NO 5056/10)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

IMMIGRATION LAW

Stay

Deportation order - Interlocutory injunction pending application for leave - Whether entitlement to stay pending leave application - Challenge to decision on subsidiary protection - Delay - Rules governing pre-leave application for interlocutory injunction - Distinction between new rules and former rules - Whether applicant denied effective remedy - Principle of equivalence - Whether absence of right of appeal of subsidiary protection decision violated principle of equivalence - Sanctioned bi-furcated arrangement for complementary protection -Alleged failure to transpose Directive - Constitutionality of provisions for deportation - Constitutionality of life long exclusion ban - D v Minister for Justice, Equality and Law Reform [2011] IEHC 37, (Unrep, Hogan J, 25/1/2011); Adebayo v Garda Commissioner [2006] 2 IR 298; O v Minister for Justice and Equality [2011] IEHC 441, (Unrep, Cooke J, 22/11/2011); Campus Oil Ltd v Minister for Industry and Commerce [1983] IR 67; PJ v Minister for Justice and Equality [2011] IEHC 443, (Unrep, Hogan J, 18/10/2011); SL(Nigeria) v Minister for Justice [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011)l A v Minister for Justice and Equality [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011; MM v Minister for Justice, Equality and Law Reform [2011] IEHC 529; (Unrep, Hogan J, 19/9/2011); U v Minister for Justice, Equality and Law Reform [2010] IEHC 492, (Unrep, Hogan J, 13/12/210); Emre v Switzerland (Unrep, ECHR, 22/5/2008), (Application No 42034/04) and Emre v Switzerland (No 2) (Unrep, ECHR, 11/10/2011) (Application No 5056/10) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 r 20 - Immigration Act 1999 (No 22), s 3 - Stay granted (2011/875JR - Hogan J - 11/1/2012) [2012] IEHC 7

I(P) v Minister for Justice, Equality and Law Reform

Facts The applicants sought leave to challenge by way of judicial review a deportation order made by the respondent on 16/08/11 and a subsidiary protection decision made on 19/10/10. The applicants herein sought an interlocutory injunction restraining the implementation of that deportation order pending the determination of the application for leave to apply for judicial review. The proceedings seeking leave to challenge both decisions were commenced on 21/09/11. The applicants relied on a number of grounds in order to challenge the deportation and subsidiary protection decisions, namely: 1). They were denied an effective remedy in respect of a challenge to those decisions, 2). The absence of a right of appeal in respect of the subsidiary protection decision violated the principle of equivalence in European Union law, 3). The State failed properly to transpose Article 4(1) of Directive 2004/83/EC which required a Member State to assess all aspects of a claim for subsidiary protection in co-operation with the applicant, 4). Section 3(1) of the Immigration Act, 1999 was unconstitutional on the grounds of proportionality having regard to the fact that a deportation order made pursuant to that section has lifelong effects, subject only to the mitigating effects of the revocation power contained in s. 3(11) of that Act.

Held by Hogan J. in granting the applicants a stay: 1) That as almost one year had elapsed since the decision regarding subsidiary protection was made and in the absence of any explanation for the delay in challenging that decision, the subsidiary protection was regarded as unimpeachable in law. Consequently, any challenge to the subsidiary protection decision was time barred.

2) That as the present pre-leave application for an interlocutory injunction was commenced prior to the 1st January 2012, that being the date the new rules came into effect, it was governed by the provisions of the now former Order 84, rule 20(7)(a) of the Rules of the Superior Courts. This former rule appeared to assume that a stay would normally accompany the grant of leave in cases where certiorari or prohibition was sought, absent special circumstances. One such special circumstance could be that a claim was manifestly unstateable. An applicant seeking a stay/injunction should not be placed in a more disadvantageous position by reason of the fact that the application for leave has yet to be heard.

3) That it could not be said that the applicants' challenge herein to either the constitutionality of s. 3(1) of the 1999 Act or on the grounds of proportionality or the incompatibility of that provision with s. 5(2) of the European Convention of Human Rights Act, 2003 was unstateble in law. In fact, the relatively recent judgments of the European Court of Human Rights in Emre v Switzerland (No1) (2008) and Emre v Switzerland (No2) (2011) raised important questions regarding the proportionality in particular of a life long exclusion ban. It followed that by analogy with the reasoning expressed in PJ v Minster for Justice and Equality, High Court, 18 October, 2011 the applicants were entitled to a stay pending the outcome of the leave application.

Reporter: L.O'S

1 JUDGMENT of Mr. Justice Gerard Hogan delivered on 11th January, 2012

2 1. In these proceedings the applicants seek leave to apply for judicial review pursuant to the provisions of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 ("the 2000 Act") to challenge a deportation decision made by the Minister on 5 ^th August, 2011. This decision was received by the applicants on 16 ^th August, 2011, so that time expired on 30 ^th August, 2011. The applicants further challenge the validity of a subsidiary protection decision taken on 19 ^th October, 2010. The present proceedings were commenced on 21 ^st September, 2011.

3 2. The applicants now seek an interlocutory injunction pursuant to the terms of a notice of motion issued on 21 ^st November 2011 restraining the implementation of this deportation order pending the determination of the leave application. Before discussing the principles governing the granting of such relief, it is important in the context of the facts of this case to draw attention to the chronology of events leading up to this litigation.

4 3. While it is clear that the applicants can probably establish grounds by reference to which the time limit contained in s. 5(2) of the 2000 Act can be extended so far as the challenge to the validity of the deportation decision is concerned, the same cannot be said of the subsidiary protection decision. Almost a year has elapsed since that decision was taken and yet no explanation has been offered as to why it was not challenged in a timely fashion.

5 4. The effect of this is that the subsidiary protection must now be regarded as unimpeachable in law. In consequence, arguments advanced by the applicants in relation to the validity of that decision cannot be regarded as sustainable, since the Court cannot now look behind that decision. The only exception here might be if the applicants were successfully to contend that the subsidiary protection decision was based on provisions of Directive 2004/83/EC ("the Qualification Directive"), which provisions were not themselves properly transposed into domestic law by the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006). I have already held that the provisions of s. 5 of the 2000 Act do not meet the test of equivalence and effectiveness, so that this particular national time limit cannot properly be relied on by the respondents in the context of a claim that the provisions of a Union Directive were not properly transposed into domestic law: see D. v. Minister for Justice, Equality and Law Reform [2011] IEHC 37.

6 5. The present pre-leave application for an interlocutory injunction is governed by the provisions of the now former O. 84, r. 20(7)(a), as this application was commenced prior to 1 ^st January, 2012, the date on which the new version of the relevant...