M v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] IEHC 413 |
| Court | High Court |
| Docket Number | [Record No. 2020/776JR] |
[2022] IEHC 413
[Record No. 2020/776JR]
THE HIGH COURT
JUDICIAL REVIEW
Deportation – Employment prospects – Reasons – Applicant seeking to quash the deportation order made against him – Whether the respondent erred in the consideration given to the applicant’s employment prospects
Facts: The applicant applied to the High Court seeking to quash the deportation order made against him bearing date 16 September 2020 and communicated to him on 30 September 2020. The applicant’s statement of claim was dated 27 October 2020 and in it he complained that the respondent, the Minister for Justice and Equality, erred in the consideration given to the applicant’s employment prospects under s. 3(6)(f) of the Immigration Act 1999 as amended. In that regard it was suggested that the respondent applied an incorrect test to the analysis by considering whether the applicant had prior permission rather than considering his actual employment prospects if permission to remain was granted. Further it was asserted an error occurred by reason of a failure to reach any conclusion on the applicant’s employment prospects. Finally, the applicant complained that the respondent failed to provide adequate reasons for the final conclusions reached, and/or failed to conduct a sufficiently clear and reasoned analysis of the actual factors which were being weighed in that regard.
Held by O’Regan J that the deportation order should not be condemned because of the inclusion of the lack of current permission to reside or work and lack of obligation on the Minister to provide such permission, within the paragraph of employment prospects. O’Regan J held that, in accordance with ANA v Minister for Justice [2021] IEHC 589 and Huang v Minister for Justice [2021] IEHC 630, such observation did not have a negative evaluation on the applicant’s employment prospects. O’Regan J held that, as was stated by Hyland J in the decision in ANA at para. 37, each case turns on its own facts. O’Regan J was satisfied that the applicant was informed in broad terms as to the reasons for the decision to make the deportation order, and accordingly the applicant had not established any unlawfulness in the Minister’s decision under the heading of reasons.
O’Regan J refused the relief claimed by the applicant.
Relief refused.
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 1st day of July, 2022
In these proceedings the applicant is seeking to quash the Deportation Order made against him bearing date 16 September 2020 and communicated to him on 30 September 2020.
The applicant's statement of claim is dated 27 October 2020 and in it he complains that the respondent erred in the consideration given to the applicant's employment prospects under s.3(6)(f) of the Immigration Act 1999 as amended.
In this regard it is suggested that the respondent applied an incorrect test to the analysis by considering whether the applicant had prior permission rather than considering his actual employment prospects if permission to remain was granted.
Further it is asserted an error occurred by reason of a failure to reach any conclusion on the applicant's employment prospects.
The applicant also complained in the statement of grounds as to the assessment of his private rights, however, this ground was not pursued.
Finally, the applicant complains that the respondent failed to provide adequate reasons for the final conclusions reached, and/or failed to conduct a sufficiently clear and reasoned analysis of the actual factors which were being weighed in this regard.
The applicant is a Pakistani national born on [X] June 1982. He arrived in the State on 13 August 2011 and made an application for asylum on 16 August 2011. This application was refused on 17 November 2011 and was appealed by the applicant. However, the applicant failed to attend an oral hearing and failed to provide an explanation. The appeal was therefore deemed abandoned.
On [X] March 2012 the applicant married a Latvian national and in his submissions of 20 December 2018 to the Minister the applicant stated that he resided with his wife in the State from 2011 to 2016. On 8 October 2012 the applicant was granted residence under the European Communities (Free Movement of Persons) Regulations 2006 and 2008, and Directive 2004/38/EC (whereby the spouse of an EU national exercising her EU Treaty rights in the State would be entitled to residence permission) which was valid until 28 September 2017.
The applicant made an application for permission on the basis of his asserted subsisting marriage as aforesaid on 3 October 2017 following which he was afforded temporary permission and was subsequently refused this permission on 10 July 2018 on the basis that his marriage was deemed to be one of convenience. A review was sought but was unsuccessful and subsequently the applicant was advised on 6 December 2018 of the Minister's proposal to make a Deportation Order.
The applicant worked as a sales assistant from 2012 to 2014 and thereafter set up his own business of a grocery shop which closed in May 2015. He subsequently opened a takeaway business. In the takeaway business the applicant employed two to three people on an ongoing basis. In an affidavit of the applicant of 26 April 2022 the applicant stated that he was forced to close the business in April 2021 because of the Deportation Order.
In the applicant's submissions, through his solicitor, of 20 December 2018, the applicant set out the background aforesaid as it then was insofar as his employment prospects are concerned and he indicated that:
“Should he be deported, his business in particular may fail and the State will lose the revenue generated from it and the employment created by this business.”
The submissions also dealt with the applicant's character, humanitarian considerations, his private and work life, together with the other matters mentioned in s.3(6) of the 1999 Act. It is suggested that the granting of the application would be wholly consistent with the common good as the applicant would be in a position to continue to provide the valuable service that his business provides. It is asserted that he makes a significant contribution to the national economy.
In the letter of 12 August 2020 accompanying the Deportation Order aforesaid it is indicated that all facts arising as outlined in the attached submission were considered. The conclusion was reached that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of the case which might tend to support a decision not to make a Deportation Order in respect of the applicant.
In the examination of file of 13 March 2020 which was also furnished to the applicant with the Deportation Order the provisions of s.3(6) of the 1999 Act were addressed. The examination proceeded to address each of the subparagraphs of s.3(6) in sequence and in the final sentence of the matters contained under sub. (e), relating to the employment record of the relevant person, it is recorded that the applicant states that should he be deported “his business may fail and the State will lose the revenue generated from it and the employment created by it.”
Thereafter under the heading of sub. (f) it is stated:
“[M] is currently working in the State in his take-away business, [X] and [X]. However, [M] does not have the permission of the Minister to reside or work in the State at this time and there is no obligation on the Minister to grant him permission to remain in the State in order to facilitate his employment/self-employment in this State.”
Under the heading of sub. (i) it is stated that all representations received in response to the proposal to make a Deportation Order in relation to the applicant, together with all documents and information received in support of the applicant's case, had been read and fully considered.
Under the heading of sub. (j) it is recorded that the applicant states that granting him permission to remain in the State would be consistent with the common good insofar as he could continue to provide the valuable service that his business provides.
Insofar as the applicant's employment prospects are concerned the complaint by the applicant is to the effect that reference to the applicant not having permission to work or reside in the State, and the Minister not being obliged to grant such permission, under the heading relating to prospects of employment, indicates that the Minister incorrectly negatively evaluated the applicant's future employment prospects.
This is identical to the complaint made by the applicant in Talukder v. Minister for Justice [2021] IEHC 835 being a judgment of Ms. Justice Hyland of 21 December 2021. At para. 18 of that judgment Hyland J. noted the argument made, and in or about a consideration of such argument referenced two judgments of Burns J. namely MAH v. Minister for Justice [2021] IEHC 302 and ANA v. Minister for Justice [2021] IEHC 589.
It is common case that Hyland J.'s judgment was consistent with Burns J.'s judgment in MAH. In both Talukder and MAH the respondent's consideration of the relevant applicant's file under the heading of employment prospects included reference to the applicant not having permission of the Minister to reside and work in the State at the relevant time and there being no obligation on the Minister to grant permission.
In MAH a further comment was made under the heading of employment prospects, namely that it would be open to a prospective employer to apply for a work permit in respect of the applicant from outside the State, with the process under s.3 of the 1999 Act not being the means by...
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