Jin Ping Huang v The Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Tara Burns |
| Judgment Date | 30 September 2021 |
| Neutral Citation | [2021] IEHC 630 |
| Docket Number | RECORD NO. 2020/671JR |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 630
RECORD NO. 2020/671JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Tara Burns delivered on 30 September 2021
The Applicant is a Chinese national who entered the State without permission through Northern Ireland in 2007 and has remained here on that basis ever since.
The Applicant's sister and her husband resided in Ireland prior to his arrival. They have two adult Irish citizen children living in the State with whom the Applicant is very close. The Applicant's nephew, who is also a business partner, refers to him as a person who gave him more influence than his father. The Applicant lives with his niece, her husband (whom he also employs) and their young daughter, with whom it is asserted he has a strong connection.
The Applicant initially worked as a qualified chef in a take away Chinese restaurant after his arrival in the State. However, in 2010 he began operating his own take away restaurant. He currently is the proprietor of two formal successful restaurants in which he continues to act as head chef. It is asserted that he spent €60,000 fitting out his most recently established restaurant. In 2017, the Applicant was granted an employment permit by the Department of Business, Enterprise and Innovation. However, as he did not have a work visa from the Respondent, the permit was revoked.
On 21 March 2019, the Applicant made a request for permission to remain to the Respondent. On 1 August 2019, that application was refused and the Respondent issued the Applicant with a proposal to deport him. Representations were made to the Respondent on foot of this proposal. These representations included letters of support and recommendation from his nephew and niece, but also references from various individuals to include a letter from ORM Licensed Vintners Ltd attesting to the Applicant's success as a businessman.
On 9 March 2020, a Deportation Order was made against the Applicant. In a letter to the Applicant notifying him of the making of the Deportation Order, it was stated:-
“The reasons for the Minister's decision are that you have remained in the State without the permission of the Minister for Justice and Equality. Having had regard to the factors set out in section 3(6) of the Immigration Act 1999 (as amended), including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in the State.”
This reflects a document headed “Recommendation of file under Section 3 of the Immigration Act 1999”, which stated:-
“Section 3(6) of the Immigration Act 1999, as amended:
I have considered all of the facts arising in this case, as outline in the attached submission. Having done so, it is concluded that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of this case which might tend to support a decision not to make a deportation order in respect of Mr. Jinping Huang.”
Leave to apply by way of Judicial Review seeking an order of Certiorari of the Deportation Order was granted by the High Court on 14 October 2020 on the grounds that the Respondent had failed to properly consider the Applicant's private and family life rights and failed to properly consider his employment history, employment prospects and economic contribution. It also was asserted that, having regard to the Applicant's circumstances, it was disproportionate to deport him
Section 3(6) of the 1999 Act requires the Respondent to consider certain specified matters when considering whether to make a Deportation Order. It provides:-
“In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—
(a) the age of the person;
(b) the duration of residence in the State of the person;
(c) the family and domestic circumstances of the person;
(d) the nature of the person's connection with the State, if any;
(e) the employment (including self-employment) record of the person;
(f) the employment (including self-employment) prospects of the person;
(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);
(h) humanitarian considerations;
(i) any representations duly made by or on behalf of the person;
(j) the common good; and
(k) considerations of national security and public policy,
so far as they appear or are known to the Minister.”
An “Examination of file under Section 3 of the Immigration Act 1999, as amended” document sets out the following relevant considerations of the Respondent:-
“Section 3(6)(c) – Family and Domestic Circumstances of the Person Abbey Law Solicitors submitted on behalf of Mr. Jinping Huang in their correspondence of 19 August 2019… that:
“…he lives with his Irish citizen niece…, her husband and their Irish citizen daughter…, in Ballymun. The family have lived at their Ballymun address for the last 6 years. We are instructed that Mr Huang is very close his niece and in particular his grand niece… — he has resided with her in the same family unit since she was born.
Mr Huang originally came to Ireland in 2007 to join his sister.. and her husband… who are long term settled migrants in this State and have three adult children living in Ireland who have Irish citizenship. He is particularly close to his nephew… and niece… who have provided letters of support of their uncle's application…”
Section 3(6)(e) – Employment (including self-employment) Record of the Person Abbey Law Solicitors submitted on behalf of Mr Jinping Huang that:
“Mr Huang works as head Chef in a restaurant in Maynooth, The Golden palace, which he also runs. He is a Director of the company GHRN which owns the business. Mr Huang has extensive experience in the Chinese restaurant business, having trained as a Chef in China. He has worked in restaurants in Ireland since his arrival in 2007 and opened a takeaway in Rathmines in 2010 with family members. In 2013 he opened his restaurant in Maynooth, the Golden palace. He also owned another restaurant called the Golden Palace in Whitehall, Dublin from 2015 – 2017. He has also recently taken a lease on a premises for a restaurant in Cellbridge with his nephew… (an Irish citizen by naturalization).
Section 3(6)(f) – Employment (including self-employment) Prospects of the Person
Mr. Jinping Huang is currently working in the State “ as head Chef in a restaurant in Maynooth, The Golden Palace, which he also runs. He is a Director of the company GHRN which owns the business.” However, Mr. Jinping Huang does not have the permission of the Minister to reside or work in the State at this time and there is no obligation on the Minister to grant him a permission to remain in the State in order to facilitate his employment in the State.
Consideration under Article 8 of the European Convention on Human Rights
It is noted that Mr. Jinping Huang claims to have integrated into society and that he has made many acquaintances since his arrival in the State purported to be during 2007. It is equally noted that Mr. Jinping Huang wishes to settle in the State and he claims to have a lot of experience in the restaurant industry having worked in the State in either an employee or self employed capacity whilst always being unlawfully present in the State.
I acknowledge the representations on file attesting to the good character of Mr. Jinping Huang. However, I also note that Mr. Jinping Huang has been residing in the State without the permission of the Minister for Justice in disregard/contravention of the immigration laws of the State since 2007
I have considered that whilst claiming to be in the State since 2007, Mr. Jinping Huang only made representations to the Minister 12 years later during 2019 when seeking to have an immigration permission bestowed to him pursuant to Section 4(1) of the immigration Act 2004 and/or Ministerial discretion.
I have considered that this correspondence gave rise to the Minister issuing him with a notification proposing his deportation pursuant to Section 3 of the Immigration Act 1999, as amended.
I acknowledge that whilst Mr. Jinping Huang now seeks to be afforded a Stamp 1 or 4 immigration permission, Mr. Jinping Huang's immigration status in the State has always been precarious.
All information submitted by and on behalf of Mr. Jinping Huang has been considered and it is not accepted that any exceptional circumstances arise. In addressing the second question raised in… R (Razgar) v. Home Secretary, having regard in particular to the fact that the status of Mr. Jinping Huang has at all times been precarious, it is not accepted that any potential interference with his private life rights will have consequences of such gravity as to engage the operation of Article 8.
Accordingly, a decision to deport Mr. Jinping Huang is not in breach of the right to respect for private life under Article 8 ECHR.
Family Life
Submissions by and on behalf of Mr. Jinping Huang in response to the Minister's notification of 01/08/2019 have been read and fully considered.
It is noted that Abbey Law Solicitors submitted on behalf of Mr. Jinping Huang in their correspondence of 19 August 2019…, that:
“…he lives with his Irish citizen niece…, her husband and their Irish citizen daughter, now aged 4…The family have lived at their Ballymun address for the last 6 years. We are instructed that Mr Huang is very close his niece and in particular his grand niece… — he has resided with her in the same family unit since she...
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