M.A. (Pakistan) v The Governor of Cloverhill Prison; M.A. (Pakistan) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 30 January 2018
• Neutral Citation: [2018] IEHC 95
• Date: 30 January 2018
• Court: High Court
• Docket Number: [2018 No. 109 S.S.] [2018 No. 73 J.R.]

[2018] IEHC 95

THE HIGH COURT

JUDICAL REVIEW

Humphreys J.

[2018 No. 109 S.S.]

[2018 No. 73 J.R.]

IN THE MATTER OF ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

M.A. (PAKISTAN)

APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON

RESPONDENT

BETWEEN

M.A. (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Marriage of convenience – Art. 40 of the Constitution – Deportation order – Judicial review – Ex turpi causa

Facts: The applicant filed an application for judicial review in relation to the deportation order made by the respondent against the applicant. The applicant also filed an application under art. 40 of the Constitution for challenging the validity of his detention in prison. The respondent objected that the applicant's application for judicial review was time barred. However, the applicant contended that he had good and sufficient reason for the extension of time limit. The applicant alleged that there was breach of principle of audi alteram partem. The respondent contended that the applicant had entered into a marriage of convenience in order to mislead the Court and the immigration authorities. The respondent also contended that the delay in applying for judicial review was due to the breach of statutory obligation of the applicant to notify his current address to the respondent.

Mr. Justice Richard Humphreys dismissed the proceedings for judicial review and also dismissed the application made under art. 40 of the Constitution. The Court found that the applicant had a marriage of convenience. The Court applied the doctrine of ex turpi causa and held that from evidence, it was clear that the applicant had attempted intentionally to deceive the Court and the immigration authorities and thus, the proceedings were an abuse of process of law. On the issue of intended leave to appeal, in relation to the proposed question, the Court refused to grant leave of appeal and relied on the decision of Okunade v. Minister for Justice and Equality [2012] IESC 49 [2012] 3 I.R. 152.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 30th day of January, 2018

Findings of fact

1 A reasonable place to begin this somewhat tangled tale is the birth of the applicant, on 11th October, 1985. When asked his date of birth, his ostensible wife did not give a clear answer, but gave a long answer in Portuguese with a great deal of hand waving which conveyed a significant impression of uncomfortableness. That was translated to the effect that it is very hard for her to memorise numbers. However she knows her own date of birth. On cross-examination she did not know in what month the applicant celebrated his birthday and said she did not really care about dates.

2 The applicant said that his father contacted the British Embassy in Pakistan and organised a visitor's permission for him to go from Pakistan to the U.K. He went to the U.K. in 2004 and was given a visitor's permission for 90 days in the false name of a Mr. Shakeel Ahmed. He claimed implausibly that this totally different name was a nickname. He says in 2004/2005 he was arrested at home. He made an unsubstantiated application for asylum in the U.K. That application was made only after his arrest, was duly refused and was not appealed. He was imprisoned and ultimately agreed to be deported, which occurred in October, 2005. In addition to using a false name he also used a false date of birth and accepted this in his evidence to the Refugee Applications Commissioner. He said that he applied for asylum in the U.K. under a false name because a friend told him to and he did not realise that was wrong.

3 He arrived in the State from Pakistan in 2009 and then made an unsubstantiated claim for asylum, which was rejected by the Refugee Applications Commissioner on 6th January, 2011 and by the Refugee Appeals Tribunal on 31st March, 2011. Refugee status was formally refused on 21st April, 2011. He then made an unsubstantiated claim for subsidiary protection.

4 He gave contradictory evidence in relation to the date his 'wife', Ms. Iolanda Da Silva, entered the State. In affidavit he said it was May or June, 2013, whereas in his EU1 form he said it was 9th September, 2013. Ultimately his oral evidence appeared to favour the latter date. Ms. Da Silva's children are now 15 and 20. Those are children of a previous relationship she had in Portugal, which by definition appears to have lasted for something in the region of six years. Those children would have been 10 and 15 at the time of her entry in 2013. The relatively tender years of Ms. Da Silva's children, and certainly of the youngest child, make it somewhat implausible, all other things being equal, that she would have left them to go to Ireland long-term and then immediately decide to get married here to somebody of precarious status.

5 There is also something of a striking contrast between her relationship with a partner of at least six years with two children in Portugal, where the question of marriage does not seem to have figured on the horizon, and with her immediate marriage to the applicant on arrival in the State. That striking contrast only underlines the peculiar nature of the transaction she entered into with the applicant. Ms. Da Silva made claims regarding the applicant's relationship with the children, which seem to me to be totally unsubstantiated. She claimed in evidence that they had a great relationship but it emerged that the applicant never met the children until he met one of them in the past week.

6 The applicant and Ms. Da Silva do not appear to have any real language in common and Ms. Da Silva's knowledge of English appears to be rudimentary to say the least. In oral evidence the applicant said he did not know when Ms. Da Silva came to Ireland. In oral evidence she said she came to the country to visit some friends. She said this was after leaving her husband, presumably she meant partner, in Portugal but said did not remember the date. When asked she said this could be more or less three months before she got married to the applicant but did not really remember. Ultimately, both of the parties in evidence essentially reinforced the conclusion that she arrived in September, 2013, barely three months before the marriage in December, 2013. She claimed that the children were staying with their paternal grandmother in Portugal and claimed they got on very well with the applicant despite the minimal to non-existent contact that has been established.

7 In his affidavit the applicant says he met Ms. Da Silva and that ' we struck up a conversation and exchanged phone numbers' although she ' speaks limited English and my own English at the time was less than fluent but we managed to communicate with one another'. She said that ' despite our language problems the applicant and I managed to communicate', which seems to me somewhat implausible. When the applicant was asked how he communicated with Ms. Da Silva he gave an answer in relation to written communications and was somewhat evasive in dealing with verbal communication. He said that Ms. Da Silva understands English a bit, ' not very good but she understands'.

8 In oral evidence Ms. Da Silva contradicted her own affidavit both as to the date of arrival and as to whether she was working before she met the applicant. In her affidavit she states she arrived in early 2013 and worked as a cleaner. She met the applicant by chance in Dublin city and ' managed to strike up a conversation'. She said in evidence she stayed in the house of a friend in Dublin city centre and said she started looking for a job when she met the applicant, very much contrary to the sense of the affidavit. She also said that she met the applicant through friends who could speak English, and thus she and the applicant could communicate. That twist was not included in either her affidavit or the applicant's affidavit and it also makes it implausible that the parties could communicate without the benefit of such ' friends'.

9 Ms. Da Silva also had a pronounced lack of knowledge of where her ostensible husband lived. In her affidavit she said she moved into the applicant's house in or about August, 2003. In oral evidence she said she ' cannot pronounce the address'. When asked where in Dublin it is she said ' it's there in the documents. I cannot pronounce it'. ' It was near the city centre, not far' was the best she could do. Correspondingly, the applicant had a lack of knowledge of where Ms. Da Silva lived. The best he could do was that it was ' around Inchicore'.

10 On 13th December, 2013, as a failed asylum seeker and with a pending subsidiary protection application subsequently rejected due to his failure to pursue it, the applicant went through a ceremony of marriage with Ms. Da Silva. The fact that the applicant was regarded as a good catch at a time when he was a failed protection seeker and had only precarious status is notable. The timing of the marriage is also notable, just marginally over three months after Ms. Da Silva allegedly arrived in the State, given the requirement to give three months' notice of intention to marry. The Minister later stated when in the process of withdrawing the applicant's permission that 'it appears that the EU citizen arrived in the State and immediately decided to marry you'. It seems to me that that view of events has been borne out by the parties' oral evidence. Indeed the applicant expressly said ' we know each other for three or four months and then we got married'. When asked did he give notice of intention to get married as soon as they met he replied ' yes'. There was no one present identifiably associated with the bride's side. When asked who was present she said the minister, her friends who were witnesses and also he had his family. None of her family was there....