L (Q) v Min for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date01 October 2014
Neutral Citation[2014] IEHC 507
Date01 October 2014

[2014] IEHC 507

THE HIGH COURT

[No. 405 J.R./2013]
L (Q) v Min for Justice & Ors
JUDICIAL REVIEW
IN THE MATTER OF S. 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

Q.L.
APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE HUMAN RIGHTS COMMISSION
NOTICE PARTIES

IMMIGRATION ACT 1999 S3(4)

IMMIGRATION ACT 1999 S3(3)(A)

IMMIGRATION ACT 1999 S3(3)(B)

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

JAVED v MIN FOR JUSTICE & ORS UNREP BARR 1.10.2014 2014 IEHC 508

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

B (E) [KOSOVO] v SECRETARY OF STATE FOR THE HOME DEPT 2009 1 AC 1159 2008 3 WLR 178 2008 4 AER 28 2008 UKHL 41

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

IMMIGRATION ACT 1999 S3(4)(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

AIREY v IRELAND 1979-80 2 EHRR 305

CONSTITUTION ART 40.3.1

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

MCCAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

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

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

O (F) v MIN FOR JUSTICE & ORS (NO 2) UNREP MAC EOCHAIDH 21.5.2013 2013/40/11720 2013 IEHC 236

IMMIGRATION ACT 1999 S3(11)

ABDULAZIZ v UNITED KINGDOM 1985 7 EHRR 471

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

C (T) & C (A) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

AGBONLAHOR v MIN FOR JUSTICE & ORS 2007 4 IR 309 2007/3/447 2007 IEHC 166

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

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 1999 S3(3)

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

IMMIGRATION ACT 2004 S5

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

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

Irish Citizenship and Nationality Act 2004 – Citizenship – Family & Social Ties – Practice and Procedure – Human Rights – Legal Submissions – Reliefs

Facts: The applicant a Chinese citizen arrived in Ireland in 2001. He had made a life in Ireland, and his daughter was born there in 2008. Due to the Irish Citizenship and Nationality Act 2004, Roisin was not an Irish citizen. She did not live in Ireland and was raised by her grandparents in China, in accordance with family tradition. The applicant and his wife ran a number of successful businesses and employed a number of Irish citizens. In the course of a routine inspection of the shop run by the applicant”s wife, it was discovered that both the applicant and his wife were living in the jurisdiction without any permission to do so. It was recommended that a notice under s. 3(4) of the Immigration Act 1999, be issued against both the applicant and his wife. The applicant was served with a notification of a proposal to deport him under s. 3(3)(a) of the Immigration Act 1999, by letter dated 11th December, 2012. The applicant decided to make representations to the Minister pursuant to s. 3(3)(b); he asserted that he should not be deported because of, inter alia, his family rights in the State. It was submitted that the applicant had never been a burden on the Irish social welfare system, and claimed that his business activity contributed to the Irish economy. The applicant”s permission to be in the State had expired and his only grounds for obtaining permission to reside in the State was on the basis of Article 41 of the Constitution and Article 8 of the European Convention on Human Rights. The applicant submitted that he and his wife had been living in Ireland for over ten years, and that they had social and family ties in the State. The applicant”s representations were rejected and by letter dated 20th May, 2013, the applicant was informed that on 10th May, 2013, the Minister had made a Deportation Order in respect of the applicant. The applicant instituted proceedings by notice of motion dated 31st May, 2013, challenging the Minister”s right to make the Deportation Order in respect of him. The core of the applicant”s case was that the absence of a gap between the Minister”s rejection of representations made by the applicant pursuant to s. 3 of the Immigration Act 1999 and his making of a Deportation Order constituted an impediment to the applicant”s rights to make representations under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights. The applicant submitted that he was the husband of Ms. A. L., who was in the same position as the applicant and did not have the benefit of current legal permission to remain in the State. The applicant submitted that he was part of the family unit, with rights protected under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights. The applicant relied on the length of time in the State, in this case, thirteen years, in which time he started a family and married. The applicant stated that he wished to make representations to the Minister that he fulfilled the criteria set out in E.B. (Kosovo) v. Secretary of State for the Home Department [2009] 1 A.C. 1159, and that his rights could only be vindicated by permitting him to reside in the State. Relying upon Bode v. Minister for Justice [2008] 3 I.R. 663, counsel for the applicant also submitted that the Minister was not obliged to consider an immigrant”s constitutional and Convention rights until representations were made under s. 3. 35. Thus, the applicant submitted that he had a right under the Constitution (as ancillary to Article 41 and/or under Article 40.3.1) and under the Convention (under Article 8 and/or Article 13) to have access to the Minister to make his case for leave to remain based on human rights guaranteed by Article 41 and Article 8. The applicant then submitted that s. 3 of the 1999 Act breached that right which was inherent in the Constitution by making it disproportionately difficult for the applicant to exercise that right.

Held by Justice Barr that he was not satisfied that there was such a delay on the part of the defendants such that the applicant”s rights could only be vindicated by permitting him to reside in the State. The Court reasoned that there was a constitutional right to make representations to the Minister in advance of his taking a decision to make a Deportation Order. The applicant had a right, under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights to have his circumstances considered by the Minister prior to making a Deportation Order. This was catered for in s. 3 which provided that the person could make representations within 15 days of receiving notification that the Minister intended to make a Deportation Order. Referring to the Bode case, where the Supreme Court made it clear that the making of representations pursuant to s. 3 of the 1999 Act, was the appropriate forum to have such representations considered by the Minister, Justice Barr reasoned that in the case at hand, the applicant had made written submissions which were considered by the Minister in advance of the making of the Deportation Order. It was determined that the fact that when the applicant was unsuccessful in his representations, the Minister proceeded to make a Deportation Order without affording the applicant an opportunity to voluntarily leave the State, was not an impediment to the applicant”s right to make representations to the Minister. The Court further reasoned that, while it was a possible consequence of the making of representations, and while the lack of a gap may operate as a deterrent to some applicants against making representations, it was not an unconstitutional or unlawful interference in the exercise of the applicant”s rights to make representations to the Minister as to why a Deportation Order should not be made in his case. Accordingly, Justice Barr was of the view that the scheme provided for in s. 3 of the Immigration Act 1999, safeguarded the right for the applicant to make representations to the Minister prior to any Deportation Order being made, was a sufficient protection to the applicant to make representations under Article 41 of the Constitution and Article 8 of the European Convention on Human Rights. The absence of a gap between the consideration of the representations, and, if unsuccessful, the making of the Deportation Order, was not a breach of the applicant”s constitutional or Convention rights. The applicant”s application for relief was refused.

Background
1

1. The applicant was bom on 20 th September, 1981, and is a Chinese citizen. He arrived in Ireland in 2001, and has been living here since. He states that he made his life in Ireland. He and his wife, Ms. A.L., have a daughter, Roisin L., bom in Cork on 11 th September, 2008. Due to the Irish Citizenship and Nationality Act 2004, Roisin is not an Irish citizen. She does not live in Ireland but is being raised by her grandparents in China, in accordance with family tradition. The applicant and his wife send money to support their daughter's upbringing in China. It would appear that the daughter, Rosin,...

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