E.M. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Elizabeth Dunne
• Judgment Date: 21 February 2024
• Neutral Citation: [2024] IESC 3
• Docket Number: S:AP:IE:2023:000019
• Court: Supreme Court

Between/

E.M.

Appellant

and

The Minister for Justice and Equality

Respondent

[2024] IESC 3

Dunne J.

Charleton J.

Woulfe J.

Murray J.

Donnelly J.

S:AP:IE:2023:000019

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judgment of Ms. Justice Elizabeth Dunne delivered on the 21st day of February 2024

Introduction

1 . This appeal concerns the appropriate test to be applied by the Minister for Justice when considering the employment prospects of a non-national who is the subject of a Deportation Order pursuant to s. 3(6) of the Immigration Act 1999 (“the 1999 Act”). A further issue in this appeal is whether the trial judge was correct to dismiss the proceedings on the basis of conduct or lack of candour.

2 . Section 3 of the 1999 Act relates to the power of the Minister for Justice (“the Minister”) to deport non-nationals from the State. Section 3(6) stipulates that when exercising the power of deportation, the Minister must have regard to a number of humanitarian factors, inter alia, “ the employment (including self-employment) prospects of the person” (see s. 3(6)(f) of the 1999 Act).

Background

3 . E.M. (“the appellant”) arrived in the State on 13 ^th August, 2011 from Pakistan. He made an application for asylum three days later, which was refused by the Refugee Applications Commissioner on 17 ^th November, 2011. An appeal was lodged to the Refugee Appeals Tribunal against this decision but was deemed abandoned on 22 ^nd May, 2012 as the appellant had failed to attend an oral hearing and failed to provide any explanation for his non-attendance. On 31 ^st May, 2012, the appellant was informed of this decision and advised that the Minister proposed to make a Deportation Order in respect of him. However, three months previously, on 15 ^th March, 2012, the appellant married a Latvian national who was resident in Ireland. On 8 ^th October, 2012, he was granted residence in the State pursuant to the European Communities (Free Movement of Persons) Regulations 2006 and 2008 and Directive 2004/38/EC as a spouse of an EU national exercising EU Treaty rights in the State. In effect, this granted the appellant Stamp 4 permission to remain in the State until 28 ^th September, 2017.

4 . On the expiry of this permission, the appellant made a second application for permission, again as a spouse of an EU citizen exercising free movement. At this stage, the Minister raised a number of concerns about the legitimacy of the appellant's relationship, noting in correspondence that the relationship seemed to have blossomed rapidly, the couple were married within six months of meeting each other, and the EU citizen had spent seven and a half months between April 2017 and March 2018 in Latvia. The Minister also stated that the EU citizen was in a relationship with another man, whom she was photographed with on social media. In a letter dated 8 ^th February, 2018, the appellant was given the opportunity to respond to those concerns but he did not provide any documentation to assuage the Minister's concerns. Subsequently, the Minister made a finding that the appellant had entered a marriage of convenience and his permission was revoked retrospectively and declared void ab initio. That decision was affirmed by the Minister on 5 ^th December, 2018.

5 . Subsequently, the appellant was notified of a proposal to deport him pursuant to s. 3 of the 1999 Act. The reason for the proposal is set out in the letter of 6 ^th December, 2018 as follows:

“ Your most recent application for permission to remain under the provisions of the European Communities (Free Movement of Persons) Regulations 2015…and Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States…has been refused/revoked as you have failed to show that you are a family member of an EU Citizen. You have no current permission to be in the State and you are therefore unlawfully present in the State.”

The appellant was invited to make representations to the Minister setting out reasons as to why a Deportation Order should not be made against him.

6 . The appellant made submissions to the Minister under each of the grounds set out in s. 3(6), alongside other supporting documentation. Under the heading “ section 3(6)(f) The employment (including self-employment) prospects of the person”, the appellant states that if he is deported, his business may fail and the State will lose the revenue generated by the employment created by his business. Over the course of his residence in the State, the appellant held a number of positions of employment. Between 2012 and 2014, he worked as a retail assistant in a grocery shop before opening his own retail business where he employed three to four people. That business closed and in 2015, he opened a takeaway business in County Kildare where he employed up to three people. The appellant had to close his business in April 2021 following the making of the Deportation Order.

7 . The Minister informed the appellant on 30 ^th September, 2020 of her decision to deport him. In the examination of file attached to the decision, the Minister noted that she had considered all representations made by the appellant and read all documentation lodged by him carefully. Under the heading of ‘employment prospects’, the Minister stated as follows:

“[The appellant] is currently working in the State in his takeaway business, [business name]. However, [the appellant] 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 employment/self-employment in this State.”

High Court Proceedings ( [2022] IEHC 413 )

8 . The appellant sought leave to apply for judicial review to quash the Deportation Order of the Minister and the examination of file on which it was based. It was alleged that the Minister erred in law in considering the appellant's employment prospects under s. 3(6)(f), and in particular, that the Minister applied the wrong test to the analysis in considering whether the appellant had permission to reside or work in the State rather than consider his employment prospects, thereby failing to reach any conclusion on the actual employment prospects of the appellant.

9 . O'Regan J. referred to the recent High Court cases of M.A.H. v. Minister for Justice [2021] IEHC 302, A.N.A. v. Minister for Justice [2021] IEHC 589, Huang v. Minister for Justice [2021] IEHC 630 and Talukder v. Minister for Justice [2021] IEHC 835, all of which concerned a challenge to the Minister's consideration of employment prospects under s. 3(6). These judgments will be considered later in the course of this judgment.

10 . O'Regan J. was satisfied that the reference to the appellant's lack of permission to reside was not fatal to the validity of the Deportation Order. She summarised her findings at para. 49 of her judgment:

“ (1) As in ANA and Huang the reference to lack of permission and lack of obligation to provide such permission comprised a statement of fact only and did not have the effect of a negative evaluation of the prospects for future employment of the applicant;

(2) if it was an error to include the matters of fact aforesaid within the employment prospect paragraph, same was a minor error in the circumstances of this case and does not comprise a basis for condemning the Deportation Order…;

(3) it is necessary to consider the entirety of the evaluation in the round and it is not appropriate to compartmentalise various matters involved in the consideration by the Minister…

(4) The prospect of employment of the applicant was not in my view central to the issue before the Minister…”

Discretionary bar to relief

11 . Separately, O'Regan J. concluded that if she was incorrect to uphold the Deportation Order, the appellant was disentitled to relief in light of his conduct. In so doing, she applied the principles identified by McKechnie J. at para. 98 of his judgment in P.N.S. v. Minister for Justice [2020] IESC 11. In that case, McKechnie J. identified four factors relevant to the exercise of the Court's discretion in denying an applicant relief on grounds of their conduct:

(a) such as to amount to abuse;

(b) serious and flagrant;

(c) deliberately engaged in; and

(d) the applicant had to have shown a clear disregard for the asylum system.

12 . O'Regan J. was satisfied that the appellant's conduct satisfied the test set out in P.N.S. in light of the following behaviour:

(a) Entering into a marriage of convenience for the purposes of circumventing the procedures and provisions of the asylum and immigration system;

(b) applying for a resident's card in 2017 on the basis that he was still residing with the Union citizen, whereas in his application to the Minister in respect of the Deportation Order the applicant has identified that he resided with the Union citizen from 2011 to 2016, and indeed the letter of 2018 from the Union citizen confirms this fact;

(c) in his application to the Minister vis-à-vis the within Deportation Order the applicant effectively advised the Minister that he could not be returned to Pakistan on the basis of fear of persecution or serious harm thereby raising the principles of prohibition against refoulement, whereas the applicant voluntarily returned to Pakistan in November 2021 and continues to reside there;

(d) the applicant has filed a supplementary affidavit as late as April 2022, however, has not provided a full and candid explanation of the discrepancy identified at para (c);

(e) the marriage of convenience was the basis of the Minister's proposal to deport and therefore the action giving rise to these proceedings; and,

(f) the matters referred to at paras (a), (b) and (c) amount to an abuse, are serious and flagrant, were deliberately...