MBB v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 07 April 2022 |
| Neutral Citation | [2022] IEHC 279 |
| Court | High Court |
| Docket Number | Record no. 2020/526/JR |
[2022] IEHC 279
Record no. 2020/526/JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Heslin delivered on the 7th day of April 2022
The First and Second Named Applicants are nationals of Pakistan. The First Named Applicant arrived in this State in 2006. The Second Named Applicant arrived in this State in 2013. The first and Second Named Applicant have been in a relationship since 2014. The Third Named Applicant is their child who was born in this State on 6 June 2015.
In the present proceedings, the Applicants seek to quash: (1) the decisions of the Respondent dated 29 November 2019 to refuse the Applicants permission to remain in the State pursuant to s. 49 of the International Protection Act 2015 (hereinafter “the 2015 Act”) and issued to the Applicants by letters dated 9 December 2019 (hereinafter the “Review Decisions”); and (2) Deportation Orders dated 17 February 2020 made by the Respondent in respect of the Applicants and issued to them by letters dated 11 March 2020 (hereinafter “the Deportation Orders”).
No application for leave to seek judicial review was made within 28 days of the notification to the Applicants of the Review Decisions. In these circumstances, the Applicants also seek an order to extend time in which to bring the within judicial review proceedings.
I have carefully considered the entire of the evidence which was before the court and which comprised the following:
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(1) the affidavit sworn by Ms. Ciara O'Reilly, solicitor for the Applicants, on 24 April 2020;
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(2) the affidavit of M.B.B. sworn on 25 April 2020 verifying the facts set out in the Applicants' Statement of Grounds dated 24 July 2020;
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(3) the contents of all exhibits “M.B.B. 1” to “M.B.B. 10” referred to in the said affidavit;
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(4) the 26 May 2020 consent of next friend, signed by the Second Named Applicant, in respect of the Third;
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(5) the affidavit of H.S., sworn 24 July 2020, verifying the facts set out in the Applicants' Statement of Grounds;
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(6) the Applicants' Amended Statement of Grounds, dated 31 July 2020;
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(7) the supplemental affidavit of Ms. Ciara O'Reilly, sworn 09 November 2020;
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(8) the affidavit of Mr. Paul McGuire of the Department of Justice, sworn 4 March 2021;
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(9) the affidavit of Ms. Gráinne Keane of the International Protection Office, sworn on 4 March 2021;
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(10) the contents of exhibits “G.K.1” to “G.K. 10” to the affidavit of Ms. Keane;
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(11) the Statement of Opposition, dated 5 March.
Having carefully considered the contents of all the following, it is possible to set out a number of relevant facts which, for the sake of clarity, I propose to set out in chronological order.
In August 2006 the Second Named Applicant entered the State. He arrived here illegally from the UK. He has worked in this State, largely illegally, since that time.
On or about 6 September 2013 the Second Named Applicant entered the State. She travelled to Ireland initially on a student visa which was valid between 9 August 2013 and 9 November 2013. On registration with the Garda National Immigration Bureau (“GNIB”) the Second Named Applicant was given a student permission which was valid until 29 September 2014. This was extended to 17 October 2015, at which time the Second Named Applicant's visa expired. Since that point, the Second Named Applicant has resided in this State without permission.
From 2014, the First and Second Named Applicants have been in a relationship and the Third Named Applicant is their child who was born in the Rotunda Hospital on 6 June 2015.
On 13 January 2015 the First Named Applicant married M.D., a Slovakian national. In circumstances where the Third Named Applicant was born on 6 June 2015, the First Named Applicant's marriage to a Slovakian national took place when the Second Named Applicant was pregnant with the Third Named Applicant.
Through Garda operation “Vantage” the First Named Applicant's aforesaid marriage was later found to be one of convenience. This is a fact which neither the first, nor the Second Named Applicant disclosed in their respective affidavits. It was discovered that the Applicants were cohabiting with their child whilst the first applicant's EU national wife had returned to Slovakia immediately after the wedding. This was not referred to in the Applicants' affidavits.
At para. 6 of his verifying affidavit sworn on 23 April 2020, the First Named Applicant says only the following with regard to the aforesaid marriage:
“I say that I married a woman from Slovakia, [M.D.], a Slovakia national, on 13 January 2015 and I was granted permission to remain for a period of 6 months on the basis that I am a spouse of an EU citizen and residing in the State in exercise of her EU Treaty rights. [M.D.] left the jurisdiction in or about June 2015 and she told me that her mother was very sick. I have had had no further contact with [M.D.] and we are separated and I am in the process of obtaining a divorce. I beg to refer to a copy of the said marriage certificate…”
The foregoing averments which appear at para. 6 of the First Named Applicant's verifying affidavit reflect, precisely, the contents of para. 3 of the Applicants' Statement of Grounds of April 2020 and para. 3 of the Applicants' Amended Statement of Grounds dated 16 November 2020.
Although the Second Named Applicant's verifying affidavit of 3 July 2020 does not refer specifically to the First Named Applicant's marriage to a Slovakian national, the Second Named Applicant avers, at para. 2 thereof, that “This affidavit is sworn for the purposes of verifying the facts set out in the statement required to ground an application for judicial review filed herein which I have read, and which has been fully explained to me and I hereby so verify same.”
Both the First and Second Named Applicants have also made the following averment which appears in para. 2 of their respective verifying affidavits: “Although English is not my first language I speak and understand it fully and I understand the contents of this affidavit and the pleadings had herein”.
On 19 October 2016 the First Named Applicant was issued with a Deportation Order but failed to show for deportation on 23 November 2016. The foregoing was not referred to by the Applicants in their affidavits.
Following a visit to the Applicant's home by GNIB in February 2017, the First Named Applicant was detained in Cloverhill Prison and, upon release, the Applicants applied together for international protection (which required the revocation of the aforesaid Deportation Order in respect of the first applicant).
The application for international protection was made on 28 February 2017 and the Deportation Order in respect of the First Named Applicant was revoked on 08 March 2017. The Applicants did not refer to the foregoing in either their verifying affidavits or in the Applicants' Statement of Grounds.
On 28 September 2018 the International Protection Office issued a 23-page report, internal page 21 of which states the following with regard to the First Named Applicant:
“11. Recommendation:
The Applicant's case was considered under section 49 and section 50 of the International Protection Act, 2015. Consideration was also given to private and family rights under Article 8 of the European Convention on Human Rights (ECHR).
Therefore, having considered the Applicant's family and the exceptional circumstances of this case and the Applicant's right to respect for his private and family life, I conclude that the Applicant M.B.B. could not be given permission to remain in the State under s. 49 of the 2015 Act.”
It is clear from the 28 September 2018 refusal of permission to remain pursuant to s. 49 of the 2015 Act that the claims advanced by the Applicants were that they would be persecuted if returned to Pakistan because they have a child together out of wedlock. Section 2 records that, at Question 87 on his questionnaire, the Applicant's legal representatives wrote on his behalf: “Applicant's parents are both dead now. Applicant is an upstanding person and never convicted of any criminal matter. Applicant is certain he will be tortured & killed if forced to return to Pakistan. Applicant loyal and devoted father to his daughter and partner. Applicant loves child and daughter and fears for their lives.”
The aforesaid refusal for permission to remain under s. 49 of the 2015 Act also stated inter alia the following as regards the First Named Applicant's January 2015 marriage:
“The Applicant … met [M.D.], a Slovakian national, and married her on 13/01/2015 in the State. He was given a temporary Stamp 4 permission valid from 24/07/2015 to 09/01/2016 pending the outcome of his application for permission to remain on the basis of this marriage. Following an investigation by An Garda Síochána as part of Operation Vantage, on 08/11/2015 a report was issued by An Garda Síochána which deemed this marriage to be a marriage of convenience and further permission to remain was refused on 12/04/2016” (internal p. 2, of 23);
“ His immediate family members, including five sisters and three brothers are still living in Pakistan.” (internal p. 6, of 23);
“The S. 39 report found that the Applicant was not at risk of persecution or serious harm in Pakistan”. (internal p. 7, of 23);
“ During the investigation into the Applicant's marriage, it was discovered that he was co-habiting with [H.S.] and his daughter while his wife, [M.D.] had returned to Slovakia, immediately following the wedding ceremony.” (internal p. 13, of 23);
“The Applicant formed his family life in the State while he was residing illegally in the State...
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