Javed v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 October 2014
• Neutral Citation: [2014] IEHC 508
• Court: High Court
• Date: 01 October 2014

Javed v Min for Justice & Ors

JUDICIAL REVIEW

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

BETWEEN

SHAHEEN JAVED

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRLEAND AND ATTORNEY GENERAL

RESPONDENTS

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

[2014] IEHC 508

[No. 333 J.R./2013]

THE HIGH COURT

Immigration - Leave to remain - Long-term extension of leave to remain sought-Deportation - Evidence of departure from State - Remained in the State without Minister”s permission - Constitutional right to make representations before issuing of a deportation order - Article 8 ECHR

Facts The applicant is a Pakistani national. She arrived in Ireland on foot of a C-Visit Visa. Her daughter, son-in-law and two granddaughters live in Cork. The applicant”s daughter suffers from chronic back pain. Recently she experienced difficulties looking after her two small babies. She therefore required the help of her mother. The applicant”s solicitor requested an extension of her leave to remain. This was requested on the basis that the applicant”s daughter was suffering from health problems, namely her back pain. The decision of Hogan J. in R.X. was quoted and it was asserted that this judgment meant that the grandparents now had rights under Article 41 of the Constitution. A medical report was furnished and she was permitted to stay within the State for a further three months. An application was made pursuant to s. 4(7) of the Immigration Act 2004. The reason for this application was the applicant”s wish to remain in Ireland to help and support her daughter and grandchildren. The letter restated the applicant”s daughter”s medical conditions and explained that the applicant had a very close bond with her youngest granddaughter. The applicant”s solicitors wrote requesting that the applicant”s permission be extended long-term. The applicant”s solicitors thus requested that the applicant be given a yearly Stamp 3 so that she could come and go to Pakistan as her husband was still living there. By letter the Minister granted permission to remain for a further three months. The applicant was instructed to make arrangements to leave the State since her visitor”s permissions were going to expire soon. The letter further required that the applicant should provide the Minister with evidence of her departure from the State e.g. a copy of Pakistan Re-entry Stamp. By letter the Minister, not having been furnished with evidence of the applicant”s departure from the State as requested, proposed to make a deportation order against the applicant under s. 3 of the Immigration Act 1999. The reason for the Minister”s proposal was that the applicant”s permission to remain had expired; that she had remained in the State without the Minister”s permission; and that she was, consequently, unlawfully present in the State.

Held There is a constitutional right to make representations to the Minister in advance of his making a decision to issue a deportation order. The applicant has a right under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights to have her circumstances considered by the Minister prior to making a deportation order. This is catered for in s. 3 Immigration Act 1999 which provides that a person can make written representations within 15 days of receiving notification that the Minister intends making a deportation order. The judge concluded the scheme provided for in s. 3 of the Immigration Act 1999 safeguards the right of the applicant to make representations to the Minister prior to any deportation being made. The judge said the absence of a gap between the considering of the representations and if unsuccessful the making of the deportation order is not a breach of the applicant”s constitutional rights or rights under Article 8 of the ECHR.

-Application for relief refused

X (R) & ORS v MIN FOR JUSTICE 2011 1 ILRM 444 2010/54/13491 2010 IEHC 446

CONSTITUTION ART 41

IMMIGRATION ACT 2004 S4(7)

O'LEARY & LEMIERE v MIN FOR JUSTICE 2013 1 ILRM 509 2013/41/12071 2012 IEHC 80

IMMIGRATION ACT 1999 S3(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.3.1

BODE & OLA-BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

IMMIGRATION ACT 1999 S3(4)(B)

NAWAZ v MIN FOR JUSTICE & ORS 2013 1 IR 142 2012/33/9724 2012 IESC 58

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S3(3)(A)

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

AIREY v IRELAND 1979-80 2 EHRR 305

SULLIVAN v BOYLAN & ORS UNREP HOGAN 4.10.2012 2012/43/12942 2012 IEHC 389

MCCAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

CONSTITUTION ART 40.3

CONSTITUTION ART 34

O'DONOGHUE v LEGAL AID BOARD & ORS 2006 4 IR 204 2004/38/8872 2004 IEHC 413

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY & ORS 2011 4 IR 1

NATIONAL ASSET MANAGEMENT AGENCY ACT 2009 S84

WOOLF & ORS DE SMITHS JUDICIAL REVIEW 6ED 2007

HAUGHEY & MULHERN v JUSTICE MORIARTY & ORS 1999 3 IR 1

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

KING v MIN FOR THE ENVIRONMENT & ORS (NO 2) 2007 1 IR 296 2006/32/6923 2006 IESC 61

IMMIGRATION ACT 1999 S3(3)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(A)

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.3.1

MURRAY v IRELAND & AG 1985 IR 532 1985/9/2561

NICOLAOU, STATE v BORD UCHTALA 1966 IR 567

K (J) v W (V) & PROTESTANT ADOPTION SOCIETY 1990 2 IR 437

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

S (BI) & ORS v MIN FOR JUSTICE UNREP DUNNE 30.11.2007 2007/54/11584 2007 IEHC 398

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S5

P (F) & L (A) v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

Background

1 1. The applicant was bom on 2 ^nd February, 1960 and is a Pakistani national. She arrived in Ireland on foot of a C-Visit Visa on 22 ^nd May, 2011. Her visa lasted for 90 days and covered the period from 29 ^th April, 2011, to 28 ^th July, 2011. The applicant's daughter, son-in-law and two granddaughters live in Cork. Her granddaughters are Irish citizens and were bom on 28 ^th May, 2010, and 4 ^th June, 2011, respectively. The applicant's daughter suffers chronic back and leg pain which makes caring for her two young daughters difficult. She therefore requires the applicant's help to look after her two children.

2 2. The applicant applied to have her permission to remain extended on five occasions between June 2011 and October 2012. Her first application for extension of permission to remain was made by letter dated 14 ^th June, 2011, wherein the applicant's solicitor requested an extension of her visitor's permission to 22 ^nd November, 2011. This request was made on the grounds that the applicant's daughter had experienced health problems during pregnancy and was finding it difficult to cope with her two young children; she therefore needed her mother's assistance. The letter also quoted from the judgment of Hogan J. in R.X. v. Minister for Justice, Equality and Law Reform [2010] IEHC 447. It was asserted that as a result of this judgment, the position of the grandparents is now protected by Article 41 of the Constitution. A medical report was submitted on 22 ^nd June, 2011, in support of the applicant's case.

3 3. By letter dated 23 ^rd June, 2011, the Minister, having considered the application, granted the applicant a three month extension of her visitor's permission, i.e. she was permitted to remain in the State until 30 ^th September, 2011. However, the applicant had already acquired a return ticket to Pakistan and she returned to that country on 20 ^th July, 2011.

4 4. The applicant was subsequently granted a single C-Visit Visa and re-entered the State on 17 ^th November, 2011. By letter dated 2 ^nd December, 2011, the applicant's solicitor requested an extension of the applicant's permission to remain in the State. This was requested on the basis that the applicant's daughter was suffering from health problems, including significant leg and back pain. The decision of Hogan J. in R.X. was again quoted and it was asserted that this judgment meant that the grandparents now had rights under Article 41 of the Constitution. A medical report was furnished by letter dated 7 ^th December, 2011. By letter dated 16 ^th January, 2012, the Minister, having considered the applicant's case, granted as an exceptional measure permission to remain for three months from the date of the letter on Stamp 3 conditions.

5 5. The applicant's third application for extension of permission to remain was made by letter dated 23 ^rd March, 2012. The applicant applied to have her permission to remain extended and to have her permission changed from Stamp 3 to Stamp 4. This application was made pursuant to s. 4(7) of the Immigration Act 2004. The reason for this application was the applicant's wish to remain in Ireland to help and support her daughter and grandchildren. The letter restated the applicant's daughter's medical conditions and explained that the applicant had a very close bond with her youngest granddaughter; it was noted that the youngest child even called her "mama". A medical report was furnished in support of this application.

6 6. By letter dated 25 ^th April, 2012, the Minister extended the applicant's permission to remain for a third time for a period of three months from 25 ^th April, 2012, until 27 ^th July, 2012. However, the applicant's application for a change of status from Stamp 3 to Stamp 4 was refused.

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