M.B. (Algeria) v The Governor of Cloverhill Prison; L.S. (Algeria) v The Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] IEHC 783 |
| Date | 21 December 2018 |
| Court | High Court |
| Docket Number | [2018 No. 1601 S.S.] [2018 No. 1602 S.S.] |
[2018] IEHC 783
THE HIGH COURT
Humphreys J.
[2018 No. 1601 S.S.]
[2018 No. 1602 S.S.]
IN THE MATTER OF AN APPLICATION UNDER ARTICLE 40.4.2° OF THE CONSTITUTION
Immigration – Statutory interpretation – Immigration Act 1999 (Deportation) Regulations 2005 – Applicants seeking to apply to the High Court under Article 40 of the Constitution – Whether reg. 5 of the Immigration Act 1999 (Deportation) Regulations 2005 is ineffective
Facts: The applicant in the first proceedings stated that he arrived in the State on 8th October, 2012. He applied for asylum unsuccessfully. He then “married” a Polish national on 5th March, 2013. He later applied for a residence card as a non-EEA national family member and was granted permission to remain in the State. On 19th July, 2017 the Minister revoked that permission under reg. 28(2) of the European Communities (Free Movement of Persons) Regulations 2006 (S.I. No. 548 of 2015) on the grounds that the marriage was one of convenience. Furthermore, information provided in the application was false and misleading. It was accepted on his behalf that the wife had returned to Poland for the purposes of divorcing him. A deportation order was signed on 14th December, 2017. He was arrested on 11th December, 2018 on the grounds of failure to leave the State by the time stated in the order and non-compliance with the terms of a notice under s. 3 of the Immigration Act 1999, which implied some level of evasion. He had in fact been evading since 4th December, 2018. The applicant in the second proceedings stated that he arrived in the State on 17th March, 2014. He also applied for asylum, an application that was rejected by the Refugee Applications Commissioner. That was appealed to the Refugee Appeals Tribunal but he failed to attend the oral hearing, so the appeal was dismissed. He then applied for subsidiary protection but failed to attend for interview on 7th January, 2016, so that was also unsuccessful. He “married” a Slovakian national on 29th January, 2015, and was granted permission to remain on that basis. On 31st December, 2016, he was notified of a decision to revoke his residence permission on the basis that this was a marriage of convenience. He was then notified of an intention to make a deportation order. In submissions under s. 3 of the 1999 Act, he accepted that the “wife” had returned to Slovakia, although claimed that this was in August, 2016. The Minister’s consideration stated that the wife admitted to the Slovakian authorities that she had entered into in a marriage of convenience for €1,000. Enquiries indicated she was not in the employment of her alleged employer and the landlord had no knowledge of her. The applicant was arrested on 11th December, 2018. He had been evading since February, 2018. The applicants’ two Article 40 applications were heard together and related to the same point of statutory interpretation. They submitted that reg. 5 of the Immigration Act 1999 (Deportation) Regulations 2005 (S.I. No. 55 of 2005) is ineffective.
Held by the High Court (Humphreys J) that the applicants were in lawful detention.
Humphreys J held that both applications would be dismissed.
Applications dismissed.
These two Article 40 applications were heard together and relate to the same point of statutory interpretation.
Mr. M.B. states that he arrived in the State on 8th October, 2012. He applied for asylum unsuccessfully. He then ‘married’ a Polish national on 5th March, 2013. He later applied for a residence card as a non-EEA national family member and was granted permission to remain in the State. On 19th July, 2017 the Minister revoked that permission under reg. 28(2) of the European Communities (Free Movement of Persons) Regulations 2006 ( S.I. No. 548 of 2015) on the grounds that the marriage was one of convenience. Furthermore, information provided in the application was false and misleading. It is accepted on his behalf that the wife has returned to Poland, although it is claimed this was only recently, for the purposes of divorcing him. A deportation order was signed on 14th December, 2017. He was arrested on 11th December, 2018 on the grounds of failure to leave the State by the time stated in the order and non-compliance with the terms of a notice under s. 3 of the Immigration Act 1999, which implies some level of evasion. I am informed that he has in fact been evading since 4th December, 2018.
Mr. L.S. states that he arrived in the State on 17th March, 2014. He also applied for asylum, an application that was rejected by the Refugee Applications Commissioner. That was appealed to the Refugee Appeals Tribunal but he failed to attend the oral hearing, so the appeal was dismissed. He then applied for subsidiary protection but failed to attend for interview on 7th January, 2016, so that was also unsuccessful. He ‘married’ a Slovakian national on 29th January, 2015, and was granted permission to remain on that basis. On 31st December, 2016, he was notified of a decision to revoke his residence permission on the basis that this was a marriage of convenience. He was then notified of an intention to make a deportation order. In submissions under s. 3 of the 1999 Act, he accepted that the ‘wife’ had returned to Slovakia, although claimed that this was in August, 2016. The Minister's consideration states that the wife admitted to the Slovakian authorities that she had entered into in a marriage of convenience for €1,000. Enquiries indicated she was not in the employment of her alleged employer and the landlord had no knowledge of her. The applicant was arrested on 11th December, 2018. I am informed that he had been evading since February, 2018.
I have received helpful submissions from Ms. Rosario Boyle S.C. and Mr. Anthony Lowry B.L., who also addressed the court, for the applicants, and from Mr. John P. Gallagher B.L. for the respondents. Certificates have been produced which have provided a prima facie justification for the detention. Mr. Gallagher has very properly drawn attention to two minor infelicities: the use of the third person as opposed to first person and the inversion of the name of Mr. L.S., but Ms. Boyle has stated that no point is being taken under those headings. It was also accepted by her that the statutory instruments relevant to the application were to be taken as admitted and did not require formal proof. Mr. Gallagher made the initial objection that judicial review was a more appropriate remedy but I do not agree. The gist of the applicant's argument challenges the detention warrants. Even insofar as the challenge could be construed as one to the regulations, an applicant can challenge an enactment in the Article 40.4 context, as Article 40.4.3° expressly recognises.
The Immigration Act 1999 (Deportation) Regulations 2005 ( S.I. No. 55 of 2005) provide in reg. 2 that ‘ In these Regulations ‘the Act’ means the Immigration Act 1999 (No. 22 of 1999) as amended by the Illegal Immigrants (Trafficking) Act 2000 (No. 29 of 2000) and the Immigration Act 2004 (No. 1 of 2004).’ Regulation 5...
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