Leng v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 November 2015
• Neutral Citation: [2015] IEHC 681
• Court: High Court
• Date: 06 November 2015

[2015] IEHC 681

THE HIGH COURT

[No. 214 J.R./2014]

Leng v Min for Justice

No Redaction Needed

JUDICIAL REVIEW

BETWEEN

BING LENG

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 19 of Misuse of Drugs Act 1977 – Denial of permission to remain in State – Failure to comply with procedural requirements – Whether the decision related to a substantive right of the applicant or merely a privilege.

Facts: The applicant sought judicial review against the decision of the respondent against the request for permission to remain in the State. The respondent declined the request for permission on the grounds of lack of ‘evidence’ of the relationship with the other partner. The respondent thereafter notified the applicant of a proposal to make a deportation order against the applicant. The applicant claimed that the respondent had failed to assess the issues. The applicant contended that the impugned decision infringed a substantive right of the applicant.

Mr. Justice Richard Humphreys held that the application for leave to seek judicial review would be refused on a discretionary basis alone. The Court observed that the balance of discretion rested firmly against the applicant in the circumstances of the present case. The Court further stated that the case lacked objective constitutional interests. The Court held that the respondent had lawfully made the decisions. The Court reiterated that the impugned decision would not infringe any substantive right of the applicant as the applicant lacked legal entitlement to be in the State after March 2011.

1 1. On 15 ^th January, 2002, the applicant Mr. Leng arrived in Ireland from China, his country of origin, with the benefit of a visa. In February 2002 he was registered with student immigration status ( "Stamp 2" permission to remain). This permission to remain in the State was renewed from time to time until March, 2011.

2 2. In January, 2011 he was arrested in respect of a charge under s. 19 of the Misuse of Drugs Act 1977, which related to allowing premises to be used for the cultivation of cannabis. On 31 ^st January, 2014, following a plea of guilty, he was sentenced by the Circuit Court to two years' imprisonment (with one year suspended).

3 3. The applicant has been unlawfully in the State at all material times following the expiry of his permission to remain in March, 2011.

4 4. Up to the time of his participation in criminality, the applicant had been involved in a long term relationship that lasted approximately seven years. This relationship broke up around the time of the applicant's offending behaviour.

5 5. The applicant met his current partner, Ms. Bing-Bing Miao, in late 2011, at a time when he was unlawfully present in the State. They began living in the same premises in March 2012, initially in a flat shared with others. They began cohabitation proper in August 2012. Ms. Miao has two Irish citizen children from a previous marriage. The applicant and Ms. Miao have since married, in August 2015.

6 6. On 8 ^th January 2014 the applicant's solicitors wrote to the Minister making an application for permission to remain in the State on "Stamp 4" terms, that is, with an entitlement to work. At the hearing of the present application, his solicitors very fairly accepted that they were aware of the terms of the Minister's scheme for permissions for de facto partnerships and were aware that the applicant did not comply with those terms. Hence they made an essentially ad hoc application rather than one that purported to come within the scheme.

7 7. The application enclosed a letter from Ms. Miao testifying to the relationship (in terms which appear to have overstated the duration of the co-habitation), but did not enclose the sort of documentary evidence of cohabitation envisaged by the Minister's published scheme.

8 8. The application also enclosed a letter from the HSE to the applicant's former solicitors, which did not make any reference to the relationship with Ms. Miao and stated that the applicant was living with friends.

9 9. By letter dated 26 ^th February, 2014, the Minister refused the application, notified the applicant's solicitors of that refusal, and enclosed documents setting out the Minister's consideration of the application. That letter set out essentially four grounds of refusal, the first of which was a lack of "evidence" of the relationship with Ms. Miao.

10 10. Shortly after that letter, the Minister wrote again on 12 ^th March, 2014, notifying the applicant of a proposal to make a deportation order against him. That letter contains an error on its face in that it recites both that the applicant was present in the State without permission, and that he both entered and was present in the State without permission. The reference to entry without permission is not correct, because, as noted above, his initial entry was on foot of a visa.

11 11. The present application for leave to seek judicial review of the decisions embodied in both of these letters was filed in Central Office on 3 ^rd April, 2014.

Procedural Matters

12 12. Mr. David Leonard, B.L., who appeared for the applicant, has drawn my attention to a typographical error in the notice of motion which as drafted seeks substantive relief rather than leave to apply for judicial review. By agreement of the parties, I will treat the notice of motion as an application for leave, which is what it was intended to be.

13 13. Mr. Leonard also applied for an extension of time to make the application. Having regard to:

i (i) the fact that an explanation for the delay in instituting proceedings is set out on affidavit,

ii (ii) the lack of objection from the Minister,

iii (iii) the lack of any prejudice to the Minister, and

iv (iv) the relatively short period of time involved,

I will make an order extending time.

14 14. Although I am not holding that either of these matters is a bar to the making of the application, that is not to say that they are entirely without relevance as I will discuss further below.

The alleged error of fact in the permission refusal

15 15. Mr. Leonard complains that in refusing the application for permission, the Minister committed an error of fact, by referring to the proposition that the applicant had not presented "evidence" of a long term relationship with Ms. Miao, whereas he had submitted a letter from Ms. Miao attesting to the relationship (although as I have said, that the letter gives the distinct impression that co-habitation began at an earlier point to that now admitted on behalf of the applicant).

16 16. Ms. Elizabeth Cogan, B.L., for the Minister characterises the letter from Ms. Miao as an "assertion" and distinguishes it from "evidence" The scheme for de facto partners as set out on the Irish Naturalisation and Immigration Service website lists a number of types of documentary evidence which are required to support an application by a partner. In the context of that policy, it seems evident to me that when departmental officials made reference to a lack of "evidence", this was a reference to a lack of evidence in the terms required by the published policy, such as utility bills and cognate documents.

17 17. In interpreting a term such as "evidence" in this correspondence, context is all-important (see comments of Smyth J. in Baby O. v Minister for Justice, Equality and Law Reform (Unreported, 20 ^th December 2001)). When viewed in the context of the Minister's policy, which requires documentary evidence and which was the template against which the application would be bound to be assessed, it is perfectly reasonable for the Minister to have stated that the applicant did not produce "evidence" of the relationship. Indeed, it is significant that his solicitors knew that he did not qualify under the published policy (by reason of a lack of a two year period of cohabitation at the time of making the application), and on that basis, they did not attempt to frame the application within the terms of the policy. Such an approach made it all the more likely, if not all but inevitable, that the Minister would find that there was a lack of evidence presented, which is what happened. In short, there was no error in the Minister's letter of refusal because there was no evidence of the relationship as defined by the contours of the policy statement.

The application was bound to fail independently of the question of whether evidence was presented

18 18. Even if it could be said that there was an error in the Minister's decision, which I do not in any way accept, it seems clear to me that this would amount to harmless error for a number of reasons. Firstly, the application did not come close to the guidelines, both by reason of a lack of documentary evidence and because para. 16 of the guidelines makes it clear that the applicant must be of good character, a test which this applicant would not have met given his conviction on indictment for a drugs offence and a consequent custodial sentence which was, in part, actually effective.

19 19. While the Minister's policy scheme could not be applied in an entirely inflexible manner, I would repeat the point I emphasised in Li v. Minster for Justice and Equality (Unreported, 21 ^st October 2015) that such policy schemes have the effect of promoting the similar treatment of similar applications and therefore of promoting equality before the law.

20 20. Secondly, the Minister's consideration of the application was based not on the lack of evidence alone but on four separate reasons for refusal. Even if the applicant had not failed to supply evidence of the relationship, the other reasons remain valid, namely:-

(i) A contradiction between the alleged cohabitation and the lack of any reference to...