M.A. (Pakistan) v The Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date09 July 2019
Neutral Citation[2019] IEHC 540
Docket Number[2018 No. 1014 J.R.]
Date09 July 2019

[2019] IEHC 540

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 1014 J.R.]

BETWEEN
M.A. (PAKISTAN)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Certiorari – Review application – Deportation order – Applicant seeking certiorari of a review decision and of a deportation order – Whether the respondent erred in law

Facts: The applicant, a citizen of Pakistan, went through the legal procedure of divorcing his wife six days before coming to Ireland. He then arrived on a tourist visa and fifteen days later gave notice of intention to marry an Irish teenager. He then overstayed unlawfully. When he failed to achieve immigration status, he went underground, working in breach of the criminal law, and evaded for many years. He failed to remove himself on foot of a deportation order. The best part of a decade after arrival, after an application for permission based on family members failed to gain ground, he claimed that he was in fear of persecution and made a protection claim for the first time. That was rejected as was an application for leave to remain. An appeal was rejected, as was a review application. The applicant sought certiorari of the review decision and of a second deportation order, contending that: (i) “In making the Impugned Decision, the Respondent [The Minister for Justice and Equality], his servants and agents, erred in law and/or fettered his discretion and/or engaged in unfairness in the consideration of the private and family rights of the Applicant and in the manner in which the review under Section 49 of the Act was conducted: (i) The Respondent erred in law by failing to make any proper determination in relation to additional documentation submitted under the factors set out at Section 49(3) of the [International Protection Act 2015], namely, (a) the nature of the applicant’s connection with the State, (b) humanitarian considerations (c) the character and conduct of the applicant (d) considerations of national security and public order, and (e) any other considerations of the common good”; (ii) “the respondent erred in failing to consider the Applicant’s family rights, in contrast to his private rights, under s. 49(3) of the Act or under Article 8 ECHR”; (iii) “In finding that there were no ‘exceptional circumstances arising’ the Respondent erred in law in applying an ‘exceptionality test’ to the analysis of family and private rights”; (iv) “the Respondent erred in fact and/or law in finding that ‘…there has been no material change in the applicant’s personal circumstances under the heading set out above…’”; (v) “The Respondent erred in law, including Article 41 of Bunreacht na hÉireann, and/or Article 8(1) ECHR, and/or fettered his discretion, in finding that refusal of permission does not breach the Applicant’s family rights; (i) The Respondent failed to give due regard or proper regard to the rights under Article 41.1.1° and/or Article 8 ECHR rights of the Applicant’s brothers, sister-in-law, and nephew, who are all Irish citizens resident in the State”; and (vi) “The Respondent acted unfairly and/or fettered his discretion in the assessment of the additional documentation furnished in support of the Applicant’s application for permission to remain.”

Held by the High Court (Humphreys J) that: (i) the premise of this ground was incorrect and the ground was inadequately pleaded; (ii) a presumption of legality applies to any administrative decision and accordingly such a decision should be read in a manner that renders it lawful rather than unlawful if possible, and it was certainly possible in this case; (iii) the lack of exceptional circumstances can be seen as essentially a statement of the reasoning of the Minister, namely that there was not any particular compelling and therefore exceptional basis as to why the original decision should be set aside on review; (iv) there had been no change in the applicant’s material circumstances; (v) the Minister’s decision on review has to be read as a finding that the applicant had not displaced the Minister’s concerns and that was a finding that was perfectly open to the Minister; and (vi) no unfairness or fettering of discretion had been demonstrated.

Humphreys J held that the proceedings would be dismissed and that the respondent was released from any undertaking not to deport the applicant.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 9th day of July, 2019
1

The applicant is a 53-year-old citizen of Pakistan who has five children there as well as a wife, who he coincidentally divorced immediately prior to seeking immigration status in Ireland. He was granted a visa in Karachi to visit the State as a tourist to see his brother and sister-in-law. That permitted him to present himself at the frontier of the State during a three-month window from 18th May, 2008 to 18th August, 2008. That did not amount to a permission to stay for that period but simply fixed the date of entry.

2

On 3rd June, 2008, he divorced his wife and on 9th June, 2008 he arrived in Ireland. Permission was granted at the border until 10th July, 2008 and that ephemeral and antique permission is the only positive permission that the applicant has ever had if one discounts the permission that arises automatically as a matter of law in making a protection application.

3

Fifteen days after arriving in the State on 24th June, 2008 he gave notice of intention to marry an Irish teenager. This marriage was then purportedly celebrated on 3rd October, 2008 when the applicant was 43 and the Irish citizen was 19. The applicant was unlawfully present in the State at the time of the marriage so was obviously a good catch.

4

In January, 2009 he applied for residency in the State on the basis of this marriage. I am informed that he provided a copy of his marriage certificate which stated that he was never married. Following further correspondence, it emerged from the visa application that the applicant had in fact been previously married. The Minister then sought a copy of the decree of divorce but the applicant failed to provide that and accordingly the application for permission to remain was refused on 28th May, 2009. A proposal to deport was then issued in response to which the applicant sought permission to remain and made representations on 4th June, 2009.

5

On 16th June, 2009 the divorce decree was eventually submitted to the Minister. The permission to remain application was refused on 2nd July, 2009 and a first deportation order was made against the applicant on 21st July, 2009. In breach of the order, the applicant did not leave the State or present to the GNIB at any time between 18th August, 2009 when required to do so and 28th January, 2016.

6

He appears to have worked illegally during his lengthy period of unlawful residence in the State. During a brief period between 9th February, 2016 and 1st March, 2016 the Minister agreed not to enforce a deportation order due to an application that the applicant made for revocation on 23rd December, 2015. That application was based on the presence of family members in the State. There was no mention of the purported Irish wife and no mention of a proposed protection application. The applicant appears to have failed to present to the GNIB, resulting in the withdrawal of the undertaking not to enforce the deportation order. That in turn was followed fairly promptly by an application for asylum on 24th May, 2016. That ultimately led to the first deportation order being revoked with effect from 19th September, 2017. Correspondence opened to the court indicated this revocation was because of the protection application.

7

In the meantime, due to the commencement of the International Protection Act 2015 the applicant was deemed to have made an application for international protection and submitted a questionnaire in that regard on 13th February, 2017. Tellingly, the questionnaire indicates that under the heading of ‘ your spouse/partner’ the applicant listed his original wife in Pakistan, no mention being made of the purported Irish wife.

8

One of the limited advantages of having a role in management of the asylum list is that one sees trends across a number of cases rather than having to take each case in isolation. One trend certainly is that the ‘real wife’ is kept in the shadows until residency is established, often on the basis of a marriage of convenience, and once that is done, unhappy differences arise with the pretend wife, and the real wife then re-emerges by way of a family reunification application. I do not need to make any particular...

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