L (A) v Min for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Date01 October 2014

[2014] IEHC 503

THE HIGH COURT

[No. 404 J.R./2013]
L (A) v Min for Justice & Ors
JUDICIAL REVIEW
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000,

BETWEEN

A.L.
APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND ATTORNEY GENERAL
RESPONDENTS

AND

COMMISIONER OF AN GARDA SÍOCHÁNA AND HUMAN RIGHTS COMMISSION
NOTICE PARTIES

IMMIGRATION ACT 1999 S3(6)

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

IMMIGRATION ACT 1999 S3

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 HRLR 40 2008 INLR 516

BODE (A MINOR) v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

IMMIGRATION ACT 1999 S3(3)(A)

IMMIGRATION ACT 1999 S3(4)

IMMIGRATION ACT 1999 S3(4)(B)

CONSTITUTION ART 40.3.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

AIREY v IRELAND 1979-80 2 EHRR 305

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

MCCAULEY v MIN FOR POSTS & TELEGRAPHS 1966 IR 345

O'DONOGHUE v LEGAL AID BOARD & ORS 2006 4 IR 204 2004/38/8872 2004 IEHC 413

CONSTITUTION ART 40.3

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 2000 IESC 19

HEANEY v IRELAND 1994 3 IR 593

KING & ORS v MIN FOR ENVIRONMENT & ORS (NO 2) 2007 1 IR 296 2006/32/6923 2006 IESC 61

ABDULAZIZ v UNITED KINGDOM 1985 7 EHRR 471

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

C (T) (ORSE MCC) & 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 1999 S3(3)

EAST DONEGAL CO-OP v AG 1970 IR 317

IMMIGRATION ACT 2004 S4

IMMIGRATION ACT 2004 S5

P (F) & ORS 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 ACT 2009 S84

WOOLF & ORS DE SMITH'S JUDICIAL REVIEW 6ED 2007

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

Immigration and Asylum – Student Visa – S. 3 of the Immigration Act 1999 – Article 8 ECHR – Article 41 of the Constitution of Ireland – Deportations

Facts: The applicant was a Chinese citizen who entered Ireland on a student visa but remained in Ireland illegally after her student visa expired. In the Minister”s opinion the applicant should be deported. The applicant made representations as to why she felt a deportation order should not be made but no decision was taken on those representations until some years later. By the time the applicant came to the attention of the Gardaí again she was married. The applicant”s partner was also in Ireland illegally. The Minster did consider the applicant”s representations under s. 3 of the Immigration Act 1999 and rejected them. The Minister notified the applicant that he had decided to make a deportation order.

The applicant contended that the absence of a gap between considering the representations and the making of the deportation order, without giving the applicant an opportunity to leave the country voluntarily, impeded the applicant”s rights to make representations pursuant to Article 41 of the Constitution and Article 8 of the ECHR. The applicant had spent ten years living in Ireland during which time she had married and started a family. The applicant relied upon this fact to argue that Article 41 of the Constitution and Article 8 of the ECHR protected her family rights. The applicant contended she had a right inherent in 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 her case for leave to remain based on her human rights under Article 41 and Article 8.

The Respondent submitted that Article 41 of the Constitution did not confer a right on non-nationals to enter and/or reside in the State and Article 8 case law demonstrated that States were not obliged to respect a married couples choice of residence. The Respondent also argued that because the applicant had no lawful basis for remaining in Ireland, Article 41 and Article 8 were not engaged. The Minister submitted that because the applicant”s Article 41 and 8 rights were not engaged, because deportation would not affect family life/rights, the applicant was not in a position to point to any constitutional right which may be breached by the alleged inadequacy of s. 3 of the Immigration Act 1999. The applicant had contended that if the representations made to the Minister were not enough to dissuade him from making a deportation order, then an additional layer/administrative procedure should be incorporated. Therefore, the main issue for the respondent was whether a person who had remained in a State unlawfully for many years would be entitled to a two-stage procedure in the context of s. 3. The respondent said that s. 3 did not provide for this.

Held by Barr J: The applicant was entitled by way of Article 41 of the Constitution and Article 8 of the ECHR to have the Minister consider her circumstances prior to the making of the deportation order. The court stated that this was provided for in s. 3 of the 1999 Act. The fact that the Minister considered the applicant”s representations and immediately proceeded to make a deportation order, without giving the applicant the option to leave Ireland voluntarily, did not in any way impede on the applicant”s right to make representations to the Minister. The court found that the deportation order was not an unconstitutional or unlawful interference with the applicants right to make representations to the Minister as to the reasons why she should not be deported. S. 3 of the Immigration Act 1999 provided the applicant with sufficient protection to make her representations under Article 41 of the Constitution and Article 8 of the ECHR. In addition, the absence of a gap between considering representations and the making of a deportation order did not breach the applicant”s constitutional or convention rights. For these reasons the court refused the applicants application.

Background
1

1. The applicant was born on 3 rd November, 1984, and is a Chinese citizen. She entered Ireland on the basis of a student visa on 20 th January, 2004. This visa permitted her to remain in the state on condition that she was pursuing a fulltime course of study and did not work more than twenty hours per week. Her permission expired on 28 th February, 2005. She has been illegally in the state since that time. She gave birth to a daughter, Roisin, in the state on 11 th September, 2008. The daughter, Roisin, who is not an Irish citizen, now lives with her grandparents in China in accordance with family tradition.

2

2. The applicant first came to the attention of An Garda Síochána on 4 April, 2008. A proposal to deport her was issued on 29 th September, 2008, on the grounds that the applicant was unlawfully present in the state and the Minister was of the view that the applicant's removal would be conducive to the common good. By letter dated 17 th October, 2008, the applicant through her solicitors submitted representation setting out the reasons why she felt a deportation order should not be issued in respect of her. For reasons not altogether clear, no decision was taken on foot of these representations until 2013.

3

3. On 3 rd November, 2011, during a routine inspection of a shop premises run by the applicant known as Sky Mobile Centre, the applicant again came to the attention of the Gardaí. She had no documentation and was asked to accompany the Gardaí to the immigration office. A search of the Garda National Immigration Bureau system showed that the applicant had been illegally in the state since February, 2005. At this point, the applicant's partner, Mr. Q.L. (who she later married on 28 th August, 2012) contacted the applicant and was asked to come to the immigration office with identification for himself and the applicant. The applicant's partner was found never to have been in the state legally.

4

4. On 5 th April, 2013, the Minister proceeded to consider the applicant's October, 2008 representations under s. 3(6) of the Immigration Act 1999, and decided to reject her representations. By letter dated 20 th May, 2013, the Minister notified the applicant of his decision to make a deportation order in respect of her. The deportation order in respect of the applicant was signed on 10 th May, 2013.

The Applicant's Submissions
5

5. The core of the applicant's case was that the absence of a gap between the considering of the representations made by the applicant leading to the rejection of those representations and the making of a deportation order, without an opportunity for the applicant to leave the country voluntarily without a deportation order being made, was an impediment to the applicant's rights to make representations pursuant to Article 41 of the Constitution and the Article 8 of the European Convention on Human Rights.

6

6. The applicant submitted that the point raised by the applicant was considered in the Supreme Court decision in Haq Nawaz v. Minister for Justice [2012] IESC 58. This case came before the court on a procedural point as to whether the challenge to s. 3 should have been brought by plenary summons, or by judicial review subject to the requirements of s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The Supreme Court accepted the Minister's contention that a person challenging the section is in...

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1 books & journal articles
  • Judicial Review of the Decisions of the Director of Public Prosecutions
    • Ireland
    • Trinity College Law Review Nbr. XIX-2016, January 2016
    • 1 January 2016
    ...IESC 4; [2011] 4 IR 1. 58 See Ailbhe O’Neill “Fair procedures – an inviolable constitutional requirement?” (2011) 33(1) DULJ 319. 59 [2014] IEHC 503. 60 [2014] IEHC 508. Trinity College Law Review [Vol 19 the person claiming such fair procedures as a person who is or may be “affected” or “a......

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