Kumar v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 17 November 2016
• Neutral Citation: [2016] IEHC 677
• Docket Number: [2013 No. 415 J.R.]
• Court: High Court
• Date: 17 November 2016

BETWEEN

ANIL KUMAR

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2016] IEHC 677

Faherty J.

[2013 No. 415 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 3 (9) of the Immigration Act, 1999 – Grant of student visa – Marriage with EU citizen – Refusal to grant EU treaty rights – Deportation order – Breach of fair procedures

Facts: In the present telescoped hearing, the applicant sought leave and an order of certiorari for quashing the decision of the respondent to deport the applicant. The applicant contended that the respondent had acted contrary to the fair procedures by not making any decision on his application for temporary leave to remain in the State, which was outside the deportation process. The respondent contended that the letter in question sent by the applicant was not an application for leave to remain but the reply in response to the proposal to deport letter sent to the applicant and thus, the impugned deportation order was made within the realms of the Immigration Act, 1999. The applicant also raised objections regarding the validity of the deportation order and remarks of the respondent related to poor employment prospects concerning the applicant while making the said deportation order.

Ms. Justice Faherty refused to grant any relief to the applicant. The Court found that the applicant considered the factors enumerated under s. 3 (6) of the Act of 1999 before making the impugned deportation order. The Court found that there was nothing irrational or illogical in the findings made by the respondent in relation to the employment prospects of the applicant. The Court held that given the economic downturn and unemployment scenario in the State, it was but reasonable inference that it would be utterly difficult for the applicant to obtain a stable long-term employment in the State even if he was granted a stamp 4 visa. The Court also noted that a failure to mention the specific date on the deportation order would not make that order invalid. The Court found that the relevant letter sent by the applicant reflected the applicant's response to the proposal to deport as evident from the language used and there was no evidence to suggest that the applicant's application was being considered outside the preview of the Act of 1999.

JUDGMENT of Ms. Justice Faherty delivered on the 17th day of November, 2016

1 This is an application for leave to apply for judicial review of a deportation order made against the applicant by the respondent on 10th May, 2013. In these telescoped proceedings, the applicant seeks, inter alia, an order of certiorari quashing the decision.

Background

2 The applicant is an Indian national who has been resident in the State since 31st December, 2004, when he arrived on a student visa. He commenced his studies on 10th January, 2005. He was a registered student until 14th September, 2012. His studies commenced with a three year BA (Hons.) in Business Management Degree in Dublin Business School. However, after the first year, due to inability to pay his fees, he changed to study at Ashfield College for a diploma in Hospitality Management. He attended Crumlin College for two years for an Accountancy Technician Ireland diploma. He then attended London College from 2009 to 2012 for a diploma in International Trade and Practice.

3 On 18th June, 2010, he applied for EU treaty rights on the basis of his marriage to an EU citizen, which had taken place on 10th May, 2010. By decision dated 21st December, 2010, the respondent refused this application.

4 Subsequently, on 22nd November, 2011, the applicant made an application to vary his permission in the State which was refused on 21st February, 2012.

5 By letter dated 29th May, 2012, he applied for residency on the basis of his marriage to an Irish citizen, which had taken place in Denmark on 8th May, 2012. Enclosed with the said application were Latvian divorce papers establishing that the applicant and his first wife (the EU citizen) had divorced on 31st January, 2012.

6 On 23rd October, 2012, the applicant's Irish citizen wife wrote to the respondent stating that her marriage to the applicant was not working out and that she was no longer residing with him. This was confirmed by the applicant's solicitors on 12th December, 2012.

7 On 23rd January 2013, the respondent advised the applicant that his application for residency based on his marriage to an Irish citizen was refused and further advised that it was proposed to make a deportation order in respect of him. The letter outlined the three options available to the applicant, including the making of representations as to why a deportation order should not be made. It was further explained that if no response was received within fifteen working days, it would be assumed that the applicant did not wish to return home voluntarily and that he did not wish to make written representations against the making of a deportation order and that in such circumstances, the respondent would proceed to consider the applicant's case on the basis of the information already on file.

8 On 18th February, 2013, under correspondence bearing the reference numbers referred to in the respondent's correspondence and headed ‘Applicant… temporary leave to study to June 2013’, the applicant's solicitors wrote to the respondent requesting that the applicant be granted temporary leave to remain to enable him to finish his studies. It was explained that the applicant was continuing his studies at Beaufort College in Integrated Accountant Systems, Advanced Financial Accounting and Advanced Taxation and that he proposed to sit his final examination in May 2013. Documentary evidence of his enrolment at that college and that his fees were fully paid up for 2012/2013 was enclosed with the letter. The letter advised that the applicant ‘has already exceeded the 7 year time limit for students but instructs that he seeks permission to complete his studies until June 2013. He would like to avail of the post-study pathway. He has strong ambition to take the ACCA programme for which he will have four examination exemptions’. The letter went on to state that ‘as a matter of equity, with respect, [the applicant] has pleaded that to deprive him of further study to June 2013 would be quite harsh. With success in the up-coming examinations he would be in far better and stronger circumstances to properly and effectively make an application for leave to remain. The facts demonstrate themselves for equitable consideration.’

9 Following an outline of the applicant's educational history in the State, the letter continued: ‘in the circumstances we would appeal that the applicant is a candidate for special consideration for an extension of his study permit. He made a self application on 15th October by email … we also note that his previous solicitors … made a similar application on 9/11/12.’

10 The letter went on to give particulars of the applicant's work at a named service station, and continued:

‘[The applicant] has been a very successful worker there and very much valued by his superiors and employers. He was trained to be a supervisor and is valued for any new position that will arise in the future. Each evening he offers himself as a trainee to do the tally after his shift. He makes the returns to head office … each day and each week. This is regarded by him and the company as training. He would have excellent prospects there if he was permitted to work more hours as a supervisor. He would like to be promoted as a supervisor’.

11 Two letters from the applicant's manager were among the documents enclosed with the letter, together with a character reference from a customer of the service station.

The respondent was apprised that for a period the applicant was ‘distracted by love’ from his studies. Reference was made to his applications for rights of residence which, it was stated, were ‘for the benefit of his wives in law, one who is a citizen of the State’. With regard to the more recent of these, the applicant's solicitors were ‘now instructed to confirm that [the applicant] is now separated from his [Irish] wife with no prospect of reconciliation. Taking our advices, having regard to the change of circumstances he belatedly redraws that application made due to unhappy differences, separation and irreparable damage to their marriage.’ The respondent was also advised that while the applicant's ‘economic experience undermined his qualification of ability to support his recent wife … he was always well able to support himself by his entrepreneurial spirit and his tenacity for work’. It was stated that the applicant had no need of public funds and that he would not experience that need to depend on another for economic support.

12 The respondent was advised, as follows:-

‘Our client seeks to continue as a student and to continue working as a trainee accountant. He would however welcome a stamp for leave to remain in the future that would enhance his opportunities with his employer and for his career. We therefore respectively request that special consideration should be given to allow the applicant to remain until June 2013. In that regard we would respectively request that the Minister postpone his proposal to make a Deportation Order under s. 3 of the Immigration Act, 1999 (as amended). We respectively suggest that it would not be conducive to the common good to deport a young man who has recently separated from his wife as a matter of decent sensitivity and time to permit him to adjust to that change of circumstance. Our client would therefore seek to choose the same options now given but in June 2013, to enable him to respectively finish his business and student affairs in the State.’

13 An examination of the applicant's file under s. 3 of the Immigration Act,...