Lupascu v Minister for Justice, Equality & Law Reform and Others

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date21 December 2004
Neutral Citation[2004] IEHC 400
Docket NumberIEHC 400 [2004]
CourtHigh Court
Date21 December 2004

[2004] IEHC 400

The High Court

IEHC 400 [2004]
Record Number: No.756 JR/2003
LUPASCU v. MINISTER FOR JUSTICE, EQUALITY & LAW REFORM & ORS

Between

Vasile Lupascu
Applicant

And

Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Respondents

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S3(3)(b)(ii)

RSC O.84

IMMIGRATION ACT 1999 S3

BUTUSHA V MIN JUSTICE UNREP PEART 29.10.2003 2003/7/1531

SOFRONI V MIN JUSTICE UNREP PEART 9.7.2004

Abstract:

Immigration - Judicial review - Deportation- Whether in the circumstances of the case the deportation order should have been quashed due to the delay in making the order - Illegal Immigrants (Trafficking) Act, 2000

The applicant applied pursuant to s. 5 of the 2000 Act for leave to commence judicial review proceedings for an order of certiorari quashing the deportation order made by the Minister and the notification of the Minister’s intention to make such an order. The applicant submitted that by virtue of the lapse of time between his arrival in the state and the making of the deportation order the Minister acquiesced to his presence in the State and that he ought to have been afforded a further opportunity to make updated submissions as his circumstances had changed since the notification of the Minister’s proposal to make a deportation order and the actual making of the order. Furthermore, the applicant stated that the Minister failed to give adequate reasons for his decision and therefore acted unreasonably and in breach of fair procedures.

Held by Peart J. in allowing relief on the ground that no destination of deportation was contained in the Deportation Order and refusing relief on the other grounds:

That the delay by the Minister did not amount to acquiescence to the presence of the applicant in the State and the Minister did not breach any obligation by failing to invite further submissions from the applicant. Furthermore, the applicant did not provide any evidence as to his change of circumstances. The reason for the Minister’s decision was made clear to the applicant.

Reporter: L.O’S.

Judgment of
Mr Justice Michael Peart
1

This is an application under s.5 of the Illegal Immigrants (Trafficking) Act,2000("the 2000 Act") for leave to commence judicial review proceedings for an order of certiorari quashing firstly the deportation order dated 7th August 2003 but notified and deemed to have been received by the applicant on or about the 13th October 2003; and secondly the notification itself pursuant to s. 3 (3) (b) (ii) of that Act, which is dated the 9th October 2003.

2

For all practical purposes the relevant date is the 13thOctober 2003. No extension of time is required, the application for the present relief having been filed on the 21st October 2003.

3

The applicant seeks also reliefs under Order 84 of the Rules of the Superior Courts which I will refer to Sabiya type relief.

4

The history of this case has been long, extending as it does back to the time of the applicant's arrival in this State more than five years ago, on the 12th February 1999. The time which has passed, for various reasons which I will outline, is relevant to why the applicant seeks leave to apply for the reliefs set forth in his Statement of Grounds, and it is part of his case that during the time which has passed, including between the 14th December 2001 when he was notified of the Minister's proposal to make a deportation order, and the 13th October 2003, the deemed date of that order, his circumstances changed in a number of material and relevant ways, including ways known to the Minister and that the applicant was not afforded any opportunity to make representations to the Minister in relation to these changed circumstances before the Deportation order was made.

5

The Grounds relied upon are, inter alia, that by virtue of the lapse of time the Minister has acquiesced in the applicant's presence in the State; that he ought to have been afforded a further opportunity to make updated submissions; that these changed circumstances include having integrated into the State to a very considerable extent during that period of delay, including having entered into a mortgage for the purchase of buying property; that his wife was given a work permit by the Minister for Enterprise, Trade And employment and that certain rights flow to the applicant by virtue of this fact, and that the Minister has failed to give adequate reasons for his decision and has therefore acted unreasonably, and in breach of fair procedures.

6

The application for leave is grounded principally on an affidavit sworn by the applicant on the 21st October 2003, which I shall come to shortly.

The affidavits:
7

The applicant says that he arrived here on the 12th February, 1999 whereupon he immediately made an asylum application which the RAC decided to transfer to the United kingdom. A refusal of an appeal against that decision issued on the 10th August 1999. The Minister made a deportation order on the 10th November 1999, whereupon Judicial Review proceedings, as well as Habeas Corpus proceedings were instituted following his arrest on foot of the Deportation Order. Leave was granted to seek Judicial Review, following which the proceedings were compromised. The applicant was permitted to re-enter the asylum process, and was interviewed on the 11thJuly 2000.

8

He received an adverse decision by letter dated 31st July 2000. He appealed against that decision, and following an oral hearing his appeal was rejected by Decision dated 2nd July 2001, communicated to the applicant by letter dated 7th August 2001.

9

This was followed by a letter dated 14th September 2001 from the Minister wherein the Minister indicated that he intended to make a Deportation Order and invited submissions pursuant to s.3 of the Immigration Act,1999. Written submissions were made by the solicitors acting on the applicant's behalf by letter dated 2nd October 2001.

10

The applicant states that he heard nothing further until he received a letter dated 9th October 2003 (over 2 years later) which enclosed a Deportation Order, and he says that the deportation order "was triggered by my request to the Tanaiste and Minister for Enterprise, Trade and Employment, Ms. Mary Harney T.D. who is my local T.D. to assist me in obtaining identification from the first named Respondent for the purpose of applying for a driving licence".

11

I should just add at this point that in his replying affidavit Mr Gleeson disputes these matters, and avers that in fact the applicant attended at the Department's offices on the 25th March 2003 "in order to renew his identity card and request the return of such original documents as may have been on his file". Mr Gleeson exhibits a letter dated the 26th March 2003 from the Department and addressed to "To Whom It May Concern" in which it is stated (a) that his asylum application has been refused, (b) consideration is being given as to whether to grant the leave to remain application or to return him to his country of origin, and (c) the Department is not in a position to issue the applicant with an identification document. Mr Gleeson says that the \Deportation Order was not "triggered" in the manner stated by the applicant.

12

The applicant then goes on to state that in the two years from the date of the Minister's proposal to deport he has put down what he describes as "substantial roots in the State" and that in particular he has taken out a mortgage and bought property in the State where he now...

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