Kaltcheva v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 03 October 2002
• Neutral Citation: 2003 WJSC-HC 6752
• Date: 03 October 2002
• Court: High Court
• Docket Number: Record No. 796JR/2001

2003 WJSC-HC 6752

THE HIGH COURT

Record No. 796JR/2001

KALTCHEVA v. MIN FOR JUSTICE & ORS

(JUDICIAL REVIEW)

Between/

IVALINA KALTCHEVA and KAMEN KALTCHEVA and STEFAN KALTECHEVA (a minor suing by his mother and next friend, IVALINA KALTCHEVA)

and

and

Applicants

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY

Respondents

Citations:

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

ALIENS (AMDT) (NO 5) ORDER 1996 SI 301/1996

IMMIGRATION ACT 1999 S3(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

IMMIGRATION ACT 1999 S3(6)(C)

OLENCZUK V MIN JUSTICE UNREP SMYTH 25.1.2002 2002/22/5645

CONSTITUTION ART 29

EUROPEAN COMMUNITIES ACT 1972 S2

CONSTITUTION ART 29.6

TREATY OF ROME 1957 ART 234

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 45(1)

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 45(5)

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 59(1)

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 54

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 59

GONCESCU & ORS V MIN JUSTICE UNREP SMYTH 24.6.2002 2002/12/2852

QUEEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE ELEANORA IVANOVA KONDOVA ECR 2001 I-06427

TREATY OF ROME ART 3(C)

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 41(1)

BULGARIAN AGREEMENT (EUROPEAN ECONOMIC AGREEMENT) 1994 ART 45(5)(A)(I)

IMMIGRATION (PROCEDURE) RULES 1984 PAR 217 (UK)

IMMIGRATION (PROCEDURE) RULES 1984 PAR 219 (UK)

Synopsis:

IMMIGRATION

Asylum

Application to issue judicial review proceedings - Certiorari - Refugee law - Deportation - European law - Employment law - Right of establishment - Practice and procedure - Whether applicants entitled to exercise right of establishment - Refugee Act, 1996 - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 (2001/796JR - Smyth J - 3/10/02)

Kaltcheva v Minister for Justice

Facts: The applicants had originally applied for refugee status and had been refused. The applicants then sought leave to remain in the State on humanitarian grounds and were refused. Deportation orders were then issued. The applicants then instituted judicial review proceedings seeking to challenge the decision to refuse them refugee status. These proceedings were eventually struck out by consent. Subsequently the applicants contended that as they were Bulgarian they were entitled to exercise their right of establishment in the State pursuant to the Europe Agreement with Bulgaria and judicial review proceedings were issued to that effect.

Held by Mr. Justice Smyth in refusing leave to institute judicial review proceedings. If the points made by the applicants concerning the right of establishment were good and valid they had been good and valid upon their arrival in the State. They applicants had been merely permitted to remain in the State while their refugee applications were being considered. The basic reliefs sought were essentially those arising from the first set of proceedings and were more in the nature of a stratagem to avoid the consequences of the deportation orders. The application would be refused.

1 JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THURSDAY THE 3RD DAY OF OCTOBER 2002

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above judgment.

3 Stenographer

APPEARANCES

For the Applicants:

MR. HUMPHRIES SC

For the Respondent:

MR. COLLINS BL

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

MR. JUSTICE SMYTH:	The First and Second
	Applicants are the parents

4 of the Third Applicant. They are Bulgarian nationals and the parents arrived in this State on 31st December 1999. They applied for refugee status and were unsuccessful at first instance and on appeal on the basis that their claims were manifestly unfounded. They applied for leave to remain in the State on humanitarian grounds and were refused leave. They were the subjects of Deportation Orders and Notices thereof to make arrangements for their deportation. Judicial review proceedings (Record No. 788JR/2000) in the names of the First and Second Applicants were issued against the same Respondent Minister as in these proceedings. It was represented to the court that the proceedings 788JR/2000 were to be governed by the decision of the Supreme Court in PL and B -v- The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 38 (delivered 30th July 2001). The Applicants, represented by counsel and solicitor, consented to the proceedings 788JR/2000 being struck out, an intimation having been given during the previous calendar month by the Applicants" then solicitors to the Chief State Solicitor that the case would not be prosecuted or proceeding when listed.

5 By letter dated 2nd November 2001, (the Applicants' legal advisor, having indicated the course that would be adopted in court), the Respondent Minister issued a letter serving the Deportation Orders and requesting the Applicants to attend at the Garda Station in Wexford on 9th November 2001 to make arrangements for deportation which was intended to take place not later than 7th December

6 The solicitors on record in these proceedings, the third set of legal advisors to the Applicants, were consulted on 23rd November 2001, and it is averred that the Applicants "were advised for the first time of our right of establishment under the Europe Agreement with Bulgaria". The case now of the Applicants is that they "wish to exercise that right in the State". Letters dated 23rd November 2001, on behalf of the First and Second Applicants, were written by the Applicants' present solicitors to the Department of Enterprise, Trade and Employment, in the following terms:-

"Dear Sirs,

We are instructed by the above-named Bulgarian citizen to inform you that he hereby asserts his right as a Bulgarian citizen to establishment in this State as a self-employed person, pursuant to the Europe Agreement with Bulgaria (Reference L358 of 31.12.1994). Please note this application. Please let us have details of any further information that you may require regarding this applicant."

7 Neither letter states frankly or at all that the Applicants were not only failed asylum seekers who had been refused leave to remain in the State, and on whom Deportation Orders had been served, or that proceedings 788JR/2000 were agreed to be struck out. Neither is there any explanation given that persons who were permitted to enter the State on seeking asylum on the basis that they were refugees on 31st December 1999 had become — if they were not at all times — economic migrants or migrant workers.

8 A letter, also of Friday, 23rd November 2001, was sent to the Immigration Division, Repatriation Section, of the Respondent Minister's Department, enclosing copies of the letters of the same date sent to the Department of Enterprise, Trade and Employment. That letter concluded:-

"Please note and confirm that no steps Will be taken to deport our said clients."

9 These proceedings were lodged in the Central Office of the High Court on 26th November 2001, with a return date of 4th December 2001.

10 The Statement Grounding the Application for Judicial Review seeks a range of reliefs grounded on three identified "grounds" set out in paragraph (e)

11 If the points made in this case were good and valid, they were so on the arrival of the Applicants in the State. The earlier proceedings did not challenge the finding that their claim for refugee status was manifestly unfounded. After the decision in PL and B, earlier referred to in the judgment, the Applicants had no case (such was the submission of the Respondent in this case) for there was/were no procedural error(s). The time for challenging the Deportation Order was within fourteen days of receipt of notice thereof in December 2000. The Applicants, being Bulgarian nationals, required a valid Irish transit visa to enter this State under SI No. 301 of 1996. They had no visas and were merely permitted to remain in the State while their asylum application was being considered. I find as a matter of fact and of law that they have no lawful entitlement to reside in the State without a visa. Such permission as was given to them was given solely for the purpose to be in the State for consideration of the asylum application they made.

12 As from the date upon which the decision of the Respondent Minister refusing the Applicants' declaration for refugee status in September 2000:-

"They were persons whose applications for asylum had been rejected at first instance and on appeal. They lacked any entitlement to remain in the country save that deriving from the procedures they were operating; ie, a right to await a decision on a request not to be deported. Both the fact that they had been refused refugee status, and the nature of the decision awaited, as it appears from the Act, emphasises that this was in the nature of an ad misericordiam application. The matters requiring to be considered were the personal circumstances of the Applicant, described under seven sub-headings; his representations (which in practice related to the same matters) and "humanitarian considerations". The impersonal matters requiring to be considered were described as "the common good and considerations of national security and public policy". They did not include in any way an obligation to revisit the original decision."

13 and again

"To put it another way, each of the Applicants was at the time of making representations, a person without title to remain in the State."

14 (Per Hardiman J, delivering the judgment of the Supreme Court in PB and L -v- The Minister for...