Malsheva v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MS. JUSTICE FINLAY GEOGHEGAN
• Judgment Date: 25 July 2003
• Neutral Citation: 2003 WJSC-HC 8051
• Court: High Court
• Date: 25 July 2003
• Docket Number: Case No. 505/2003 JR

2003 WJSC-HC 8051

THE HIGH COURT

Case No. 505/2003 JR

MALSHEVA & CLARE v. MIN FOR JUSTICE

DUBLIN

TATIANA MALSHEVA & STEPHEN CLARE

APPLICANTS

and

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

RESPONDENTS

Citations:

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84

CONSTITUTION ART 41

OSAYANDE & LOBE V MIN JUSTICE & ORS UNREP SUPREME 23.1.2003

OJO V GOV DOCHAS CENTRE UNREP FINLAY-GEOGHEGAN 8.5.2003 2003/43/10437

G V DPP 1994 IR 374

IMMIGRATION ACT 1999 S3(11)

RSC O.84 r20

CAMPUS OIL LTD V MIN FOR INDUSTRY & ENERGY (NO 2) 1983 IR 88

Synopsis:

IMMIGRATION

Asylum

Deportation - Family rights - Judicial review - Leave - Interlocutory relief -Whether right to reside in Ireland with spouse - Whether deportation illegal - Whether Minister failed to decide within reasonable time - Illegal Immigrants (Trafficking) Act, 2000 section 5 - Bunreacht na hÉireann, Article 41 (2003/505 - Finlay Geoghegan J - 25/7/2003)

Malsheva v Minister for Justice, Equality and Law Reform

The applicants sought leave to issue judicial review proceedings and interlocutory relief. The applicants contended that their marriage gave the second applicant who was an Irish citizen an absolute right to reside in Ireland with his spouse. The applicants also argued that the deportation was illegal by reason of the failure of the Minister to consider the constitutional rights of the applicants prior to effecting deportation. The applicants further submitted that the Minister had failed to decide upon the application for revocation of the deportation order within a reasonable period of time. Certain of the reliefs sought fell outside s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

Held by Finlay Geoghegan J. (ex tempore) in granting leave that since the family rights could be restricted, it appeared that it could not follow that the deportation order automatically became invalid on marriage. However, there was an arguable case that the deportation was illegal by reason of the failure of the Minister to consider the constitutional family rights of the applicants prior to effecting deportation. The court also granted the interlocutory relief sought. The balance of convenience favoured the applicants.

1 MS. JUSTICE FINLAY GEOGHEGAN ON FRIDAY, 25 JULY 2003

2 This is an application which I heard yesterday in which the applicants who are married to each other seek leave to issue judicial review proceedings seeking certain reliefs and also seek interlocutory relief. The applications raise important issues of law but there is an obvious urgency having regard to the application for interlocutory relief. It appeared to me as a preliminary matter that it was not appropriate that I would consider the application for interlocutory relief without hearing the application for leave as it appeared to me that if an applicant was going to meet the- threshold to be entitled to interlocutory relief as distinct from interim relief that that threshold also involved the meeting of thresholds which permitted the granting of leave to issue a judicial review.

3 There are a number of reliefs set out in the proposed Statement of Grounds and in the Notice of Motion and I think that they can be conveniently grouped into the following essential reliefs: Firstly, a declaration is sought that the constitutional and legal rights of the applicants have been infringed and most specifically at the hearing that was related to a declaration that the deportation of the first-named applicant which was effected on 9 April 2003 was unlawful.

4 Relief is also sought in respect of the order for deportation which has been made by the Minister and an Order of Certiorarisought in relation to that order. Relief is then thirdly sought in relation to the failure by the Minister to make a decision on the application for revocation of the Deportation Order and connected to that an Order of Mandamus requiring the Minister to make the decision and also an order of Mandamus is sought to direct the Minister to revoke the Deportation Order made.

5 Certain of the above reliefs it is submitted fall outside section 5 of the Illegal Immigrants (Trafficking) Act 2000and therefore the normal rules in order 84 apply, and I will return to that.

6 The interlocutory relief at the hearing was confined to an order restraining the Minister from preventing the first-named applicant from -re-entering the State in reliance upon the Deportation Order.

7 The facts in this application are set out in two affidavits, one from the second-named applicant who is an Irish citizen and the other from Ms. Carr, an official in the Department of Justice, Equality and Law Reform.

8 The exhibits to Ms. Carr's affidavit in particular raise certain issues of fact in relation to the first-named applicant which it is stated on her behalf by her counsel she has not had an opportunity of dealing with. It is not my intention at this stage in the proceedings to make any findings- of fact, but I think it helpful to state briefly prima facie what the facts are as set out in the affidavits.

9 The first-named applicant appears to have entered this country in 1998 as a student on a Russian passport which at that stage appeared to be valid from 27 February 1996 to 27 February 2001. She obtained what appears to have been a student visa which was renewed throughout 1999 and 2000. On 21 January 2000 the first-named applicant made an application for a declaration of refugee status-, and prima facie there appear to be certain inconsistencies between the application for refugee status and the earlier documentation appearing in respect of the student visa. On 29 August 2 000 she was notified of a decision to refuse her application for a declaration of refugee status. Thereafter, there was an appeal taken on her behalf by a firm of solicitors then acting for her. It appears from the exhibits to Ms. Carr's affidavit that she failed to turn up for the hearing of the appeal on 4 May 2001, and that she was subsequently informed of the recommendation of the RAT and ultimately the decision of the Minister to refuse a declaration of refugee status. This latter refusal appears to have been communicated in a letter of 29 May 2001.

10 Ultimately following the normal statutory procedure a Deportation Order was made by the Minister on 25 February 2002 and a section 3 notification letter appears to have been sent to the first-named applicant on 8 March 2002 which required her to present herself on 15 March 2002.

11 On 6 August 2002 the first and second-named applicants were married to each other in the Registry Office in the State. It appears that on 12 August 2002 an application was made to GNIB in respect of a visa and there is a stamp on her passport on that date. A visa was granted to the first-named applicant which was to last until 13 August 2003 and there is on her passport, which is a subsequent passport to the passport I have already referred to, a passport which is valid from 11 March 2001 to 11 March. 2006, a stamp under the name of the Minister for Justice, Equality and Law Reform stating that she is permitted to remain in Ireland until 13 August 2003.

12 It appears that on 6 April 2003 the first-named applicant was arrested for the purpose of deportation. Her deportation was arranged for the morning of 9 April 2003 to the intent that she was to depart on a flight due to leave at 11:05 on that morning. On the morning of 9 April 2003 Messrs. Pendred & Co, the applicants” present solicitors, wrote letters on her behalf to the Governor of the Dochas centre at which she had been retained; to the Minister for Justice, Equality and Law Reform and to the Chief State Solicitor's office. The earliest of those letters were sent to the Governor of Dochas by fax at 10:46 and the one to the Minister was sent at 10:52; therefore, just within a few minutes of the time at which it was intended the first-named applicant would leave the country.

13 The issues which I "identify as arising on this application having regard to the submissions made by counsel appeared to be the following: the first and most fundamental submission made by Mr. Humphreys on behalf of the applicants is that the fact of the marriage of the applicants gives to the second-named...