J.A.(Pakistan) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 01 May 2018
• Neutral Citation: [2018] IEHC 343
• Court: High Court
• Docket Number: [2018 No. 248 J.R.]
• Date: 01 May 2018

[2018] IEHC 343

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 248 J.R.]

BETWEEN

J.A. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Deportation – Proportionality – Private life – Applicant seeking certiorari of a deportation order – Whether there was inadequate consideration of the applicant's family circumstances and private life

Facts: The applicant commenced proceedings on 27th March, 2018, seeking: (i) certiorari of a deportation order of 22nd January, 2016; (ii) certiorari of the first Immigration Act 1999 s. 3(11) decision of 21st April, 2017; and (iii) certiorari of the second s. 3(11) decision of 6th April, 2018. The applicant submitted that there was no or inadequate consideration of his family circumstances and private life. He submitted that the respondent, the Minister for Justice and Equality, failed adequately or at all to consider his situation and rights especially under art. 8, or that deportation would be disproportionate and a breach of art. 8

Held by Humphreys J that the ground as pleaded that there was inadequate consideration had not been made out. Insofar as disproportionality was alleged, Humphreys J held that the Minister weighed the matters in favour of the applicant in balance with those against, including the public interest in deportation, in view of the applicant's offending history and lengthy list of convictions, a number of which attracted custodial sentences. Humphreys J held that the conclusion was not unreasonable. Humphreys J also refused relief to the applicant on the grounds of the applicant's lack of candour and bona fides and his flagrant and ongoing breaches of the laws of the State.

Humphreys J held that the application should be dismissed on the merits and that the injunction against deportation should be discharged.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of May, 2018

1 The applicant arrived in the State in 2002 at the age of ten with his mother and siblings. His asylum application was rejected in 2004. On 8th November, 2006 he applied for subsidiary protection. That application was withdrawn on 10th May, 2010.

2 On 24th July, 2012 he was granted a permission to remain which was renewed on two occasions up to 2015. On 9th May, 2012 he accumulated his first conviction for handling stolen property, for which he received a custodial sentence. In the following years, there followed a series of further convictions for possession of drugs, possession of drugs for the purpose of sale or supply for which a custodial sentence was imposed, handling stolen property, possession of drugs which also attracted a custodial sentence, handling stolen property which attracted a custodial sentence, possession of drugs for supply which attracted a custodial sentence, no insurance, driving with excess alcohol, and possession of a mobile telephone in prison which attracted a custodial sentence.

3 On 22nd September, 2015 there was a proposal to deport the applicant. On 30th October, 2015 he made an application for leave to remain and submissions under s. 3 of the Immigration Act 1999 referring to an address (different to that last notified) in Moate, County Westmeath. His last notified address had been in Athlone.

4 Section 6(1) of the 1999 Act as amended provides for three ways under which a notice under the Act may be served on a person:

(i). by delivering it directly to him or her,

(ii). by sending by post to the address most recently furnished to the registration officer or the Refugee Applications Commissioner or

(iii). in the case in which an address for service has been furnished, by posting to that address.

5 Thus simply writing a letter to the Department is insufficient. Formal notice of change of address needs to be given to the registration officer, that is the GNIB, or the Refugee Applications Commissioner, or alternatively an address for service should be furnished. Certainly including information about a change of address as part of a wider letter written for some other purpose is most decidedly insufficient. Consequently, in this case, service on the applicant's previously notified address continued to be valid in accordance with the 1999 Act notwithstanding the s. 3 submissions.

6 On 22nd January, 2016 a deportation order was made supported by a lengthy analysis in which the Minister weighed all the issues both in favour of and against the applicant. The subsequent s. 3(11) decisions under the Immigration Act 1999 must be read in conjunction with this original analysis.

7 On 17th February, 2016 the deportation order was notified to the applicant and his solicitor. There is no question but that the applicant was aware of this at the time. The order was not challenged within the time provided for by s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

8 After the deportation order, and on top of the convictions in 2012, 2013, 2014 and 2015, the applicant accumulated further convictions, unfortunately not referred to in the applicant's written legal submissions, dating from 2016, 2017 and 2018.

9 On 20th April, 2016 the applicant gave notice of intention to marry an Irish national in a proposed legal ceremony which never took place. On 24th May, 2016 the applicant 'married' that Irish citizen in an Islamic ceremony which was not legally binding. He has since separated from that partner.

10 On 8th August, 2016 the applicant made a first application for revocation of the deportation order under s. 3(11) submitted by his then solicitors, KOD Lyons. On 23rd September, 2016 the applicant consulted AC Pendred & Co. solicitors. KOD Lyons indicated that they would send the file to the new solicitors. On 28th April, 2017 a letter refusing the first s. 3(11) application was notified firstly to the applicant at his last formally notified address in Athlone, which service was in accordance with the 1999 Act and therefore valid, and secondly to the solicitors of which notice had been given to the Department, namely KOD Lyons. No authority to change solicitor had been furnished to the Department by that stage.

11 KOD Lyons forthwith sent the letter to AC Pendreds, as has been made clear by a letter being exhibited dated 3rd May, 2017 enclosing ' correspondence from INIS which was received in our office yesterday'.

12 In the meantime, on 25th April, 2017 a second s. 3(11) application was made by AC Pendreds. While presumably at that particular point in time AC Pendreds were unaware of the decision on the first s. 3(11) application, they became so aware on receipt of the letter of 3rd May, 2017.

13 The applicant's instructions as deposed to in a hearsay manner by his current solicitor in her affidavit of 1st May, 2018 are that neither set of previous solicitors notified him of this seismic development. While it is well within the bounds of the possible if not probable that KOD Lyons did not so notify him given that their instructions had been terminated at that point, it would be an extraordinary breach of duty if AC Pendreds solicitors failed to notify the applicant on foot of the letter received by them from KOD Lyons; and I do not accept for a moment that it is likely or even remotely plausible that they failed to comply with their duty to notify the applicant in that regard, the applicant's solicitor's hearsay account of the applicant's instructions notwithstanding.

14 On 9th May, 2017, the s. 3(11) application was resubmitted as an error had been made in the first application. On 27th March, 2018 the applicant was arrested. The applicant has been represented by a third set of solicitors, Aonghus McCarthy solicitors, since March, 2018.

15 I have received submissions from Ms. Sunniva McDonagh S.C. and Mr Pádraig Langsch B.L. for the applicant and Ms. Kilda Mooney B.L. for the respondent.

Procedural history

16 Over the Easter vacation the applicant got a late night injunction from Barniville J., the duty judge on 27th March, 2018, to prevent his removal from the State the following day, 28th March, 2018. At that emergency hearing he presented an unsworn draft affidavit of the applicant's solicitor which was sworn the next day, which states that no decision had been made on the s. 3(11) application. I fully accept the bona fides of the applicant's current solicitor but I do not accept that the applicant's instructions given to her were either correct or bona fide. As I have said, I think it is overwhelmingly likely that the applicant was informed of the refusal of the first s. 3(11) application by his then solicitors AC Pendred. In all...