L.v and Another v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | MR JUSTICE HEDIGAN, |
| Judgment Date | 10 December 2008 |
| Neutral Citation | [2008] IEHC 387 |
| Court | High Court |
| Date | 10 December 2008 |
[2008] IEHC 387
THE HIGH COURT
BETWEEN
AND
EC REG 343/2003
REFUGEE ACT 1996 S11(10)
REFUGEE ACT 1996 S17(1A)
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S5
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 11(4)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 21
CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88
METOCK & ORS v MIN FOR JUSTICE 2008 3 CMLR 39
EC DIR 2004/38/EC ART 2.2(A)
EC DIR 2004/38/EC ART 7.1(D)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 2
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 3
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 6(2)(a)(i)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 6(2)(b)
EC DIR 2004/38/EC ART 27
EC DIR 2004/38/EC ART 35
EC DIR 2004/38/EC ART 14.4(A)
EC DIR 2004/38/EC CHAPTER VI
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 7
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 7(1)(a)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 7(3)
EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (NO 2) REGS 2006 SI 656/2006 REG 20
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840
O (A) & L (D) & ORS v MIN FOR JUSTICE 2003 1 IR 1
O (O) & ORS v MIN FOR JUSTICE & GOVERNOR OF CLOVERHILL PRISON UNREP PEART 3.7.2007 2007/45/9532
MARGINE v MIN FOR JUSTICE & ORS UNREP PEART 14.7.2004 2004/30/6912
I (H) & B (R) v MIN FOR JUSTICE UNREP HEDIGAN 13.12.2007 2007/29/5930
EC DIR 2004/38/EC ART 7.3
I (EP) & ORS v MIN FOR JUSTICE UNREP HEDIGAN 18.11.2008 2008 IEHC 358
C (L) v MIN FOR JUSTICE 2007 2 IR 133
IMMIGRATION
Deportation
Interlocutory injunction - Applicant married to EU citizen - Failure of applicant to engage with asylum or deportation process - Whether fair question to be tried - Whether damages adequate remedy - Whether necessary for applicant to show irreparable damage in order to obtain injunctive relief - Whether balance of convenience favoured relief - Whether interest of State in controlling immigration factor to be weighed in balance of convenience - Whether applicant had clean hands - Whether applicant enjoyed derivative right of residence - Campus Oil v Minister for Industry and Energy (No 2) [1983] 1 IR 88, HI v Minister for Justice [2007] IEHC 447 (Unrep, Hedigan J, 13/12/2007), O v Minister for Justice [2007] IEHC 275 (Unrep, Peart J, 03/07/2007), PI v Minister for Justice [2008] IEHC 358 (Unrep, Hedigan J, 18/11/2008), AO & DL v Minister for Justice [2003] 1 IR 1 and LC v Minister for Justice [2006] IESC 44 [2007] 2 IR 133 applied; Metock v Minister for Justice (Case C-127/08, ECJ, 25/7/2008), Margine v Minister for Justice (Unrep, Peart J, 14/07/2004), K v Minister for Justice [2007] IEHC 306 & [2007] IEHC 308 (Unrep, Birmingham J, 20/7/2007) considered; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 distinguished - European Communities (Free Movement of Persons) (No 2) Regulations (SI 656/2006), regs 2, 3, 6 and 7 - Council Directive 2004/38/EC, art 35 - European Convention on Human Rights, art 8 - Leave refused (2008/1376JR - Hedigan J - 10/12/2008) [2008] IEHC 387
V(L) v Minister for Justice, Equality and Law Reform
The first and second named applicants were lawfully married in the State on 16 th May, 2008. The first named applicant is a citizen of Latvia and the European Union (EU). It is claimed that she is in employment in Ireland. Her husband, the second named applicant, is a national of Nigeria. They are seeking an interlocutory injunction restraining the deportation of the second named applicant pending the determination of a review of the Minister's refusal to grant a residence card to the second named applicant, and pending the outcome of the within judicial review proceedings. An interim injunction was granted by Birmingham J. on 4 th December, 2008.
The second named applicant applied for asylum soon after his arrival in the State on 14 th September, 2006. In his ASY-1 form, he stated that he had left Nigeria on 7 th September, 2006 and had never made any previous asylum applications. A EURODAC "hit" revealed, however, that he had made a previous application for asylum in Germany in September, 2004. It was determined that Germany was responsible for examining his asylum application under Council Regulation (EC) No. 343/2003 ("the Dublin II Regulation"), and a Transfer Order was made in respect of him on 18 th October, 2006. That order was notified to him and he was directed to present himself to the Garda National Immigration Bureau (GNIB) a fortnight later. He failed to present as directed, and was classified as an evader.
The timeframes contained in the Dublin II Regulation expired and it fell to Ireland to examine the second named applicant's asylum application. By letter dated 8 th April, 2008, he was invited for interview with the Office of the Refugee Applications Commissioner (ORAC) on 18 th April, 2008, but he did not attend and did not thereafter provide any explanation for his failure to do so. On 6 th May, 2008, ORAC deemed his application withdrawn and on 21 st May, 2008, the Minister decided not to grant him a declaration of refugee status; those decisions were made in accordance with sections 11(10) and 17(1A) of the Refugee Act 1996, respectively.
The second named applicant was notified of that decision, informed that the Minister was considering making a deportation order in respect of him, and invited to make submissions seeking leave to remain in the State, but he did not do so nor were any made on his behalf. His file was analysed under the usual provisions (including section 3 of the Immigration Act 1999, section 5 of the Refugee Act 1996, and section 4 of the Criminal Justice (UNCAT) Act 2000), and it was recommended that the Minister sign a deportation order in respect of him. A deportation order was signed on 18 th June, 2008. That order was notified to the second named applicant by registered post the following week but the letter of notification was returned to the Minister marked "not called for". A copy of the letter of notification was also sent to the applicants' then-legal representative.
On 2 nd September, 2008, some four months after the applicants' marriage, the applicants' solicitors wrote to the EU Treaty Rights Section of the respondent's Department, enclosing a Form EU 1 application for a residence card for the second named applicant (i.e. a non-EEA family member). That application was made on the basis of his marriage to an EU citizen. A different entry was made on the Form EU 1 with respect to each spouse's current residential addresses, neither of which had been notified to the authorities. Appended to that application were the applicants' marriage certificate, identification documents, and an NTL bill in the first named applicant's name, purporting to act as proof of residence.
The Minister sent a standard request to the second named applicant on 9 th September, 2008, seeking further documentation in relation to proof of residence (from a landlord or financial institution) and evidence of exercise by the first named applicant of her EU Treaty rights in Ireland. A copy of that request was furnished to the applicant's solicitors but no reply was received from the applicants or their solicitors to this request. The applicants' evidence is that they did not receive this request as they had moved to County Louth. They did not, however, notify their change of address to their local immigration office.
In the meantime, an application for revocation of the deportation order was made and rejected by the EU Treaty Rights Section.
On 3 rd December, 2008, the second named applicant was arrested and detained in Cloverhill Prison for the purpose of his deportation. The following day, on 4 th December, 2008, the applicant's solicitors informed the GNIB that the applicants had moved to a new address in Dundalk, Co. Louth. On the same day, the applicants' solicitors also wrote to the Minister, requesting an undertaking not to deport the second named applicant until his application for a residence card had been determined. No undertaking was forthcoming. At 4pm that day, an interim injunction restraining the deportation of the second named applicant was sought and was granted by Birmingham J. The Minister's Department was notified of this injunction at 4.30pm on the same day.
Several hours later, on the evening of 4 th December, 2008, a letter was faxed from the EU Treaty Rights Section of the Minister's Department to the applicant's solicitors indicating that the Minister had considered and was refusing to grant the second named applicant a residence card. The letter stated that the second named applicant had failed to show that his wife, the first named applicant, was previously employed, and was then in employment or seeking employment in the State. It also stated that the second named applicant had failed to establish satisfactorily that his wife was resident in the State, failed to notify his local immigration office of his change of address, as required under Regulation 11(4) of S.I. No. 656 of 2006, and failed to provide any documentation to verify his current place of residence. The letter stated that the Minister was not satisfied that the first named applicant was exercising her EU Treaty Rights in the...
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