Margine v Minister for For Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 14 July 2004
• Neutral Citation: [2004] IEHC 127
• Court: High Court
• Docket Number: Record No: No. 976JR/2003
• Date: 14 July 2004

[2004] IEHC 127

THE HIGH COURT

Record No: No. 976JR/2003

MARGINE v. MINISTER FOR FOR JUSTICE, EQUALITY & LAW REFORM

JUDICIAL REVIEW

Between:

Oleg Margine

Applicant

And

The Minister for Justice and Law Reform, Ireland, The Attorney General, and The Governor of Mountjoy Prison

Respondents

Citations:

IMMIGRATION ACT 1999 S3(11)

RSC O.84 r20(7)(A)

CONSTITUTION ART 42.5

OSAYANDE & LOBE V MIN JUSTICE 2003 1 IR 1

NORTH WESTERN HEALTH BOARD B W (H) 2001 3 IR 622

CONSTITUTION ART 41.1.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.1

P & L & B V MIN JUSTICE 2002 1 IR 164 2002 1 ILRM 38

CONSTITUTION ART 41.3.1

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

BOUCHELKIA & FRANCE 1997 25 EHRR 686

ABDULAZIZ & CABALES & BALKANALI V UNITED KINGDOM 1985 7 EHRR 471

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

MAHMOOD, R V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 UKHRR 307 2001 1 WLR 840

Abstract:

Immigration - Asylum - Judicial review Deportation order - Whether integrity of asylum process outweighs asserted family rights Ñ Whether deportation order validly served Ñ Whether deportation order should be quashed.

Facts: the applicant had applied for asylum, which application was rejected and a deportation order against him subsequently issued to his last known address. He alleged that he never received notice of the deportation order until he was arrested on foot of it later and challenged it as being invalid on that basis. He also submitted that he was entitled to remain in the State on the basis that he was lately the father of an Irish born child. He submitted that it would be a breach of his constitutional family rights and his rights under the European Convention on Human Rights if he was required to leave the country while his applications for residency on the basis of his Irish born child and for revocation of the deportation order were being considered and applied to have the deportation order quashed.

Held by Peart J in refusing the relief sought that the first respondent had complied with his statutory obligations in relation to the making and issuing of a valid deportation order. The objective of upholding the integrity of the asylum process was of sufficient weight to outweigh the asserted family rights, which were not absolute rights, of the applicant.

Reporter: P.C.

Judgment of

Mr Justice Michael Peart

1 This is an application, pursuant to leave granted by Order of Ms. Justice Finlay Geoghegan dated 23^rd January 2004 for the reliefs by way of judicial review, as set forth in the Notice of Motion herein dated 27^th January 2004, and as further elaborated upon in the Statement Grounding the Application (as amended). Those reliefs are:

2 1. A Declaration that the legal and/or constitutional rights and/or rights under the European Convention on Human Rights of the applicant have been infringed;

3 2. A Declaration that that the applicant is entitled to remain in the State, or alternatively is entitled to remain in the State pending the determination of his application for residency and/or pending the determination of his application under section 3(11) of the Immigration Act,1999.

4 3. A stay pursuant to Order 84 rule 20(7)(a), or an interim and/or interlocutory injunction restraining the respondents from acting adversely to the rights of the applicant pending the determination of these proceedings.

5 The applicant sprang to life immediately upon being arrested on the 18^th December 2003 on foot of a Deportation which had been made on the 29^th May 2002. Solicitors were instructed, and an application for injunctive relief to restrain his deportation was urgently prepared and was heard by Ms. Justice Finlay Geoghegan on the 23^rd December 2003, and she gave her decision on 14^th January 2004, granting the relief on certain terms as to the release of the applicant pending the earlier of either the determination of the application for leave, or if leave be granted, any refusal of the substantive application, or any decision by the first named respondent of any decision to refuse the application for residency and/or an application to revoke the Deportation.

6 In or around May 2001 the applicant arrived in Ireland from his country of nationality, namely Moldova. He completed the ASY 1 form for the purposes of making an application for asylum. It appears that he failed to attend for interview subsequently. His application was considered and was refused. By letter dated 26^th March 2002 he was notified of the proposal to make a deportation order by letter dated 26^th March 2002 which was posted to him at the address notified to the Minister. That letter was not actually received by the applicant since the envelope was returned to the Minister's office marked "gone away".

7 A Deportation Order was duly made on the 29^th May 2002, and the making of that order was also notified to the applicant by a letter dated 21^st June 2002 sent to the same address. That letter was also returned to the Minister by An Post with a note that there was no answer at the address for delivery. That letter required the applicant to present himself at the Garda Station in Waterford City on the 28^th June 2002 so that arrangements could be made for his deportation. Of course he did not attend since he had not received the notification, and so the statutory procedures marched on, and he immediately fell into the category of an evader and was liable to arrest and detention without warrant, a consequence of non-compliance warned of in the notification, if received.

8 Nothing more happened following the sending of that notification, until Messrs. Colgan & Company, solicitors, of Chapelizod, Dublin 20 wrote to the Repatriation Unit of the Minister's Department on the 1^st May 2003 with which they enclosed a written and signed authority to act from their client, and which indicated that all further correspondence should be addressed to that firm at their office situated at Iceland Shopping Centre, Le Fanu Road, Ballyfermot, Dublin 10. Curiously, no address for the applicant appears in either the letter from Colgan & Co, or indeed in the authority to act. But it is reasonable to assume that the applicant was residing somewhere in the vicinity of Ballyfermot since that is the branch of Colgan & Co chosen for communication. In that letter Messrs. Colgan & Co had written as follows:

"We have been advised by the RAC that our above-named client's file is with the Repatriation Unit. Could you please advise us as a matter of urgency the status of his case."(my emphasis)

9 The Repatriation Unit responded promptly to that letter by letter dated 7th May 2003 pointing out that the applicant had been notified to present himself at Waterford Garda Station for deportation on the 28th June 2002, but that he did not attend and was then classed as an evader. The letter went to inform the solicitors that their client should therefore make himself known to his nearest Garda Immigration Officer immediately. That of course did not happen, and the next relevant event is simply the arrest of the applicant on the 18th December 2003 outside the door of 44, Dominick Street, Dublin 1.

10 Following this arrest, a different firm of solicitors was instructed to act on the applicant's instructions. No reason is given for the change in representation. In a grounding affidavit sworn on the 19^thDecember 2003 his solicitor states that the first the applicant knew of the existence of the Deportation Order was when he was arrested. That can only be correct if the applicant never went back to Colgan & Co to see if they had any news for him about his application, or if in the absence of any such enquiry from their client, Messrs. Colgan & Co did not make efforts to communicate the position to him. That neither would have occurred seems unlikely in the extreme, especially given the urgency imported into their letter dated 1^st May 2003 to the Repatriation Unit.

11 Following the arrest of the applicant, his new solicitors wrote to the first named respondent confirming that they now act for him. They also stated that their instructions were that their client is the father of an Irish born child who was born on the 12^th June 2003 - i.e. just over one year after the making of the Deportation Order, and that this therefore constitutes a material change in his circumstances. The Minister was asked in those circumstances to reconsider his decision to deport the applicant, and the solicitors also applied on behalf of their client for a revocation of the deportation order due to those changed circumstances.

12 It is the position, therefore, that the applicant, following the birth of the child in June 2003 and before his arrest in December 2003 had made no application for residency on the basis of being the father of an Irish born child, or an application for the revocation of the Deportation Order of which his then solicitors had been informed in May 2003 as a result of the request for urgent information as to the status of the applicant's application for a declaration of refugee status.

13 First of all it has to be noted that the applicant at no time notified the Minister even after the child was born, of the birth of a child of which he is alleged to be the father. It is also a fact of course that the child was not born or even conceived prior to the making of the Deportation order. Nevertheless the applicant submits, through his solicitors affidavit, that"he believes that all the circumstances of his case, including inter alia the fact of his being a parent of an Irish born child, were not adequately or properly considered by the respondents."

14 A birth certificate for the child in question is...