Lin (A Minor) v The Minister for Justice, Equality and anor

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 18 December 2018
• Neutral Citation: [2018] IEHC 780
• Docket Number: [2014 No. 601 J.R.]
• Court: High Court
• Date: 18 December 2018

[2018] IEHC 780

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2014 No. 601 J.R.]

BETWEEN

YUXIN LIN (A MINOR SUING BY HER FATHER AND NEXT FRIEND MINGHONG LIN)

MINGHONG LIN

AND

HAI HONG WANG

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum & immigration – Chinese nationals – Deportation orders – Application for judicial review – S 5 Illegal Immigrants (Trafficking) Act 2000

Facts: The applicants, a mother and father from China and their child, had been served with deportation orders after it was determined they had no permission to remain in the State. They now sought to challenge those orders considering the provisions of the Illegal Immigrants (Trafficking) Act 2000.

Held by Humphreys J, that the application would be dismissed. The applicants had failed to make out their case in the overwhelming light of the jurisprudence before the Court.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of December, 2018

1 The applicants are a Chinese family. The father has been in Ireland since 2009 and has never had permission to be here. The mother came to Ireland in April, 2012 and has also never had such permission. The parents applied in September, 2012 for ministerial permission, which was refused. A proposal to deport was made in February, 2013. The first-named applicant was born in the State on 15th August, 2013. On 19th September, 2014 the child applied for permission to be in the State under s. 4 of the Immigration Act 2004. The department wrote a letter dated 24th September, 2014, acknowledging that correspondence. That stated that ‘ given that this child has no valid basis to remain in the State both her parents being the subject of a deportation order, arrangements are being made to have a notification pursuant to the provisions of section 3 of the Immigration Act, 1999 as amended issued to her’. The letter went on to say ‘it will be open to her or those who represent her interests to submit written representations setting out reasons why she should not have a deportation order made in respect of her’. Deportation orders were made on 26th August, 2014 in respect of the husband and on 27th August, 2014 in respect of the wife. The parents have since applied to revoke those orders. On 26th September, 2014 a proposal under s. 3 of the 1999 Act was made in respect of the child.

Procedural history

2 Proceedings were issued on 14th October, 2014, the primary relief sought being:

(i) certiorari of what was described as a ‘ decision’ of 24th September, 2014 to refuse to consider the application for permission under s. 4 of the Immigration Act 2004, and

(ii) certiorari of the proposal to deport the first-named applicant.

3 Section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to relief 2 and possibly to relief 1 as well, seeing as it is so intimately bound up with the proposal the subject of relief 2. Originally the application was by way of leave on notice. There was to have been a telescoped hearing, which was listed twice, and adjourned on both occasions because of issues concerning the Luximon v. Minister for Justice and Equality [2016] IECA 382 [2016] 2 I.R. 725 [2017] 2 I.L.R.M. 35 litigation. On 3rd October, 2017, I made an order un-telescoping the proceedings and granting leave to the applicants. The case was then sent to the Luximon holding list. Following the Supreme Court's decision in Luximon v. Minister for Justice and Equality [2018] IESC 24, a statement of opposition (undated) was delivered and the matter was listed for hearing. The respondents have given an undertaking in the present proceedings not to process the s. 3 proposal and not to deport the parents pending determination of the proceedings. I have received submissions from Mr. Colm O'Dwyer S.C. (with Mr. James Buckley B.L.) for the applicants and Mr. Rory Mulcahy S.C. (with Mr. Anthony Moore B.L.) for the respondent.

Was the purported application by the child under s. 4 of the Immigration Act 2004 valid?

4 The child's s. 4 application was clearly misconceived. The Supreme Court has already held that ‘ the obvious focus of s.4 is not to set some general template for all permissions granted, but rather to make provision for the decision of immigration officers at point of entry to the State’ per O'Donnell J. in Sulaimon v. Minister for Justice and Equality [2012] IESC 63 (Unreported, Supreme Court, 21st December, 2012) at para. 19; see also Hussein v. Minister for Justice and Equality [2015] 3 I.R. 423, Dike v. Minister for Justice and Equality (Unreported, Faherty J., 23rd February, 2016) and R.G. v. Minister for Justice and Equality [2016] IEHC 733 (Unreported, O'Regan J., 24th November, 2016).

5 The s. 4 procedure does not apply to a child born in the State without a legal entitlement to remain. Even if hypothetically the Minister exercised the power under s. 4 directly, as opposed to through an immigration officer, that remains in the context of a control of entry procedure (leave to land, as it is put in the marginal note) and does not convert s. 4 into a free-roving procedure to grant permissions to anyone who happens to be present in the State.

6 If and insofar as the judgments in Jamali v. Minister for Justice and Equality [2013] IEHC 27 [2013] 1 I.R. 609 per Clark J., or Saleem v. Minister for Justice and Equality [2011] IEHC 223 [2011] 2 I.R. 386 per Cooke J. suggest to the contrary, such interpretations should not be followed because the position as laid down by the Supreme Court is clear to the effect that the executive power to grant a permission to a non-Irish national is separate to the provisions of s. 4, and the latter provisions relate to the point of entry. It is true the decision in the present case does not actually expressly say...