Jahangir v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 01 February 2018
• Neutral Citation: [2018] IEHC 37
• Docket Number: [2017 No. 588 J.R.]
• Date: 01 February 2018
• Court: High Court

[2018] IEHC 37

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 588 J.R.]

BETWEEN

ZAIN JAHANGIR

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration and Nationality - Deportation order - Art. 8 of European Commission on Human Rights - S.3(6)(c) of the Immigration Act 1999 - Art 40.3 of the Constitution - Family and domestic circumstances - Obligation on the Minister - Constitutional rights

Facts: The applicant sought an order of certiorari against the deportation order made by the respondent/Minister. The applicant contended that the respondent/Minister had acted unlawfully in failing to consider the constitutional rights of the applicant engaged by the applicant's deportation order.

Mr. Justice Richard Humphreys dismissed the relief sought by the applicant. The Court held that there was no obligation on the part of the Minister to expressly and precisely identify the constitutional rights of the applicant. The Court noted that the applicant's family life was considered by the Minister under the ECHR rather than the Constitution. The Court observed that the respondent did consider the relationship between the parties and took the view that it was not durable akin to marriage.

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

1 The applicant arrived in Ireland unlawfully from the U.K. in 2011. In 2015, he was discovered working illegally in the State by members of the Gardai. He declined the opportunity to voluntarily leave the State but instead on 2nd October, 2015, made an application pursuant to s. 4 of the Immigration Act 2004. Those representations state he was single, made no mention of a relationship, and stated that he had lived in Limerick since 2011.

2 On 29th September, 2016, he was issued with notice of intention to deport him. On 5th October, 2016, submissions were made on his behalf claiming he had been in a relationship for the previous eighteen months with an Irish citizen, Marie Duff, who has two children. However, it is clear that only skeletal information was provided to the Minister. The submissions did not state that the parties were living together. The applicant gave an address in Inchicore and attached a letter of reference that refers to 'my next door neighbours'. It is suggested that this implies that the parties were living together, but the Minister should not be thrust into the role of amateur detective to infer such a fundamental matter that could easily have been expressly stated. There was no submission from his partner and no documentary proof that the parties were living together. A claim was made that they had a still-born child, although no registration of the still-birth was provided. The representations did not assert constitutionally protected family rights going beyond a point being made regarding the lifelong nature of a deportation order. The sole invocation of the Constitution specifically is Article 40.3, insofar as that relates to the duration of a non-national's expulsion.

3 On 22nd November, 2016, further reference letters were provided, which again did not state that the parties resided together. A deportation order was made on 6th July, 2017. The analysis notes the complaint regarding the lifelong nature of the exclusion, and deals with this relying on Sivsivadze v. Minister for Justice Equality and Law Reform [2015] IESC 53 [2016] 2 I.R. 403. The family and domestic circumstances of the applicant are considered under the headings of s. 3(6)(c) of the Immigration Act 1999 and art. 8 of the ECHR. The submission referred to the lack of information as to the applicant's relationship with the partner and her children, and considers that the representations did not disclose a durable relationship akin to marriage.

4 Leave was granted by O'Regan J. on the 24th July, 2017. The applicant's grounding affidavit includes some further detail about the nature of the relationship, particularly with the partner's children, which was never put to the Minister prior to the decision.

5 I have received helpful submissions from Ms. Sunniva McDonagh S.C. (with Mr. Paul O'Shea B.L.) for the applicant and from Ms. Denise Brett S.C. (with Ms. Elizabeth Cogan B.L.) for the respondent.

Relief sought

6 The only substantive relief sought is an order of certiorari directed to the deportation order. The only substantive ground is an allegation that the Minister acted unlawfully in failing to consider the constitutional rights engaged by the applicant's deportation ' in circumstances where constitutional rights are engaged by the said deportation and where representations in that regard were made to her'.

A decision cannot be condemned by reference to failure to consider a point that was not put to the decision-maker.

7 On a number of previous occasions, I have made it clear that it is not open to an applicant to condemn a decision...