K.A. v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 12 October 2023
• Neutral Citation: [2023] IEHC 556
• Court: High Court
• Docket Number: [Record No. 2022/391JR]

Between

KA

Applicant

and

The Minister for Justice

Respondent

[2023] IEHC 556

[Record No. 2022/391JR]

THE HIGH COURT

Judicial review – Extension of time – Deportation notification – Applicant seeking certiorari of the deportation notification issued to him – Whether there should be an extension of time

Facts: The applicant, a citizen of Egypt, arrived in Ireland in April 2019 and made an application for international protection that he did not pursue. By a Three Options Letter dated 25 March 2022, he was advised of the proposal of the respondent, the Minister for Justice, to deport him. The applicant applied to the High Court seeking certiorari of the deportation notification issued to him under s. 3(3)(a) of the Immigration Act 1999 by the letter. He also sought an extension of time pursuant to O. 84, r. 21. The applicant received the letter on 30 March 2022. The time for applying for leave to seek judicial review expired on 22 April 2022. The applicant sought an extension of time on the basis of the intervening legal vacation and more particularly, due to an outbreak of COVID-19 in his solicitor’s office. The applicant said his excusable delay had not caused any prejudice to the respondent. The applicant claimed that the wording of option three in the letter (the option) was an unlawful attempt by the respondent to reserve to herself a right to make a deportation order against the applicant in what the respondent referred to as “very exceptional circumstances”, with no further explanation of what that might entail. The applicant claimed that the Oireachtas did not provide any statutory basis for the respondent to make a deportation order where a person leaves the State voluntarily before the respondent makes a final decision on her proposal to make a deportation order. He averred on affidavit that he could not make an informed decision in relation to the options given to him, that he found the letter confusing as to how the options would operate, that he had no knowledge of the “very exceptional circumstances” in which the respondent would exercise her power to make a deportation order against him even if he left the State voluntarily, that he did not want to have a deportation order made against him and that he would have seriously considered exercising the option of leaving the State voluntarily but could not do so because, inter alia, he lacked clarity as to the consequences of such a decision. The applicant emphasised the right of a person who chooses to engage with the deportation order process to make representations; such a person may be the subject of a deportation order depending on the respondent’s consideration of the matters set out at s. 3(6) of the Act, including consideration of any representations that are made. A person who leaves voluntarily loses the right to make such representations and must, therefore, be able to make an informed decision about their options, which the applicant said he was unable to do due to the lack of any understanding of the “very exceptional circumstances” referred to and of the legal basis for reserving a right to rely on them.

Held by Bolger J that the period of delay was relatively short, somewhere between thirteen and twenty days. She accepted that the outbreak of COVID-19 in the applicant’s solicitor’s office caused operational difficulties that led to the delay in the institution of the proceedings, which did not actively prejudice the respondent and constituted good and sufficient reason for extending time. Bolger J therefore allowed the extension of time sought. She considered that the impugned option set out in the letter involved the respondent reserving the right to make a deportation order in the future should exceptional circumstances arise, for which there was no statutory power. Bolger J held that the impugned option was ultra vires the respondent’s powers under s. 3 of the Act. Bolger J therefore granted an order for certiorari quashing the notice issued to the applicant by way of the letter pursuant to s. 3(3)(a).

Bolger J’s indicative view on costs was that, in accordance with s. 169 of the Legal Services Regulatory Act 2015, the applicant was entitled to his costs.

Reliefs granted.

Counsel for the applicant: Conor Power SC, Femi Daniyan BL

Counsel for the respondent: John Gallagher BL

JUDGMENT of Ms Justice Bolger delivered on the 12 ^th day of October 2023 .

1 . The applicant seeks certiorari of the deportation notification issued to him under s.3(3)(a) of the Immigration Act 1999 by letter dated 25 March 2022. He also seeks an extension of time pursuant to O.84, r.21.

Background

2 . The applicant is a citizen of Egypt who arrived in Ireland in April 2019 and made an application for international protection that he did not pursue. By what is known as a Three Options Letter dated 25 March 2022, he was advised of the Minister's proposal to deport him. A copy of that letter is attached at Appendix 1 to this judgment. This application is a challenge to the deportation notification in that letter and in particular, option one of the three options the letter offered to the applicant.

3 . The applicant received the letter on 30 March 2022. The time for applying for leave to seek judicial review expired on 22 April 2022. The applicant seeks an extension of time on the basis of the intervening legal vacation and more particularly, due to an outbreak of COVID-19 in his solicitor's office. The applicant says his excusable delay has not caused any prejudice to the respondent.

Extension of time

4 . The period of delay was relatively short, somewhere between thirteen and twenty days. I accept that the outbreak of COVID-19 in the applicant's solicitor's office caused operational difficulties that led to the delay in the institution of these proceedings, which did not actively prejudice the Minister and constitute good and sufficient reason for extending time. I therefore allow the extension of time sought.

The parties' submissions

5 . The applicant claims that the wording of option three in the Three Options Letter (hereinafter referred to as ‘the option’) is an unlawful attempt by the Minister to reserve to herself a right to make a Deportation Order against the applicant in what the Minister refers to as “ very exceptional circumstances”, with no further explanation of what that might entail. The applicant claims that the Oireachtas did not provide any statutory basis for the Minister to make a Deportation Order where a person leaves the State voluntarily before the Minister makes a final decision on her proposal to make a Deportation Order. He has averred on affidavit that he cannot make an informed decision in relation to the options given to him, that he found the letter confusing as to how the options would operate, that he had no knowledge of the “ very exceptional circumstances” in which the Minister would exercise her power to make a Deportation Order against him even if he left the State voluntarily, that he did not want to have a Deportation Order made against him and that he would have seriously considered exercising the option of leaving the State voluntarily but could not do so because, inter alia, he lacked clarity as to the consequences of such a decision.

6 . The applicant emphasises the right of a person who chooses to engage with the Deportation Order process to make representations. Such a person may be the subject of a Deportation Order depending on the Minister's consideration of the matters set out at s.3(6) of the Act, including consideration of any representations that are made. A person who leaves voluntarily loses the right to make such representations and must, therefore, be able to make an informed decision about their options, which the applicant says he was unable to do due to the lack of any understanding of the “ very exceptional circumstances” referred to and of the legal basis for reserving a right to rely on them.

7 . The Minister describes the impugned option, which sets out the consequences of leaving the State voluntarily, as simply furnishing information as s.3(4)(d) expressly permits her to do. In the Statement of Opposition, the Minister pleads her entitlement to “draft such notices in terms which make allowances for unforeseen circumstances or occurrence” and at para. 6 sets out the following non-exhaustive examples of what exceptional circumstances might arise:

“ One such instance is where a person initially complies with the option to leave voluntarily, and does so, but then subsequently returns to the State some weeks, months or years later. Such a person could be the subject of a deportation order upon the occurrence of that eventuality and notwithstanding their earlier voluntary compliance. Another would potentially arise in respect of a serving prisoner: such a person could choose immediate voluntary departure but their circumstances may dictate that this course of action is not available to them; they too may be the subject of a deportation order to ensure their orderly removal from the State notwithstanding their ostensible consent.”

Section 3 of the 1999 Act

8 . This is essentially a case of statutory interpretation i.e., what s.3 means and whether the impugned option is within or without the Minister's statutory powers pursuant to that section. Section 3 subss. 1 to 6 merit full quotation:

“ 3.—(1) Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a deportation order”) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.

(1A) A person the subject of a deportation order under this section may be detained in accordance with the provisions of this Act for the purpose...