MIH v SIH, a Minor suing by her Mother and next Friend, MIH
| Jurisdiction | Ireland |
| Judge | Mr Justice Peter Charleton |
| Judgment Date | 11 May 2021 |
| Neutral Citation | [2021] IESC 32 |
| Docket Number | [2020] IEHC 360 High Court Record Number: 2018/ 788 |
| Year | 2021 |
| Court | Supreme Court |
and
[2021] IESC 32
O'Donnell J
MacMenamin J
Charleton J
O'Malley J
Baker J
Supreme Court appeal number: S:AP:IE:2020:000120
High Court Record Number: 2018/ 788
An Chúirt Uachtarach
The Supreme Court
Deportation – Delay – Constitutional rights – Appellant appealing against judgment quashing deportation order – Whether the delay between the proposal for deportation and the making of the order itself gave rise to substantive and procedural rights
Facts: The respondents, Pakistani nationals, came to Ireland in July 2014, from the UK as part of the extended family of the first respondent’s brother. In May 2015, the respondents applied for EU1 Residence Cards. In November 2015, the applications were refused by the appellant, the Minister for Justice and Equality. In February 2017, an application to review that decision also resulted in a refusal to grant the residence card on the basis that the respondents did not meet the requirements. The Minister at that time issued notifications in respect of the respondents that proposed to make a deportation order pursuant to s. 3 of the Immigration Act 1999, as amended. However, it was not until 5 September 2018, some 18 months following on from that correspondence, that such a deportation order was notified to the respondents by s. 3(3)(b)(ii) notice. The deportation orders themselves were signed by the Minister about a fortnight earlier on 24 August 2018. The respondents brought judicial review proceedings against the Minister’s issuance of the deportation order. This came on for hearing before Barrett J. On 22 July 2020, the High Court quashed the order on a number of grounds, which had not been appealed, and the judgment also indicated a view that the delay between the proposal for deportation and the making of the order itself gave rise to substantive and procedural rights; [2020] IEHC 360. The Minister sought to appeal directly to the Supreme Court and by determination dated 22 December 2020, leave to directly appeal was granted; [2020] IESCDET 148. The Minister submitted that the trial judge erred in his judgment in suggesting, obiter, that the delay between the s. 3 proposal and the making of the deportation orders could give rise to constitutional or European Convention rights which might potentially challenge the legality of the deportation order.
Held by Charleton J that there was no sound authority for the proposition that delay in processing an application for residency thereby gives rise to a conversion from a perilous legal status in immigration terms, or a situation of illegal presence in the State, into legal status. Charleton J found that, as a matter of general legal principle, the passage of time may lead to a situation where other rights arise which are not generated by the delay itself but which might result from a significant change in circumstances during the period of delay. Charleton J reiterated that delay does not change one’s legal status, that of being an illegal immigrant, or someone seeking a legal permit to reside in the State, into a situation of permission to remain; any such decision is for the Minister.
Charleton J noted that the High Court quashed the deportation order against the respondents on grounds that did not relate to this appeal; those grounds were therefore not before the Supreme Court and the High Court order stood in that regard. The deportation order was quashed and there was no proposal to issue a fresh deportation order pending the Minister considering the application for residence by reason of being, it was claimed, part of the household of the first respondent’s brother when he came from Great Britain as an EU citizen to Ireland in July 2014.
Deportation order quashed.
Judgment of Mr Justice Peter Charleton delivered Tuesday 11 May 2021
The essence of the issue for decision in the context of immigration is whether delay in issuing a deportation order, in and of itself, can create rights to remain in the State where otherwise foreign nationals have no entitlements of residence.
MH and her daughter SH, are Pakistani nationals. They were born in 1978 and 2001, respectively. They came to Ireland in July 2014, from the UK as part of the extended family of MH's brother, a Mr C, born in 1987, and thus the uncle of SH. He is of Pakistani origin but also is a British subject and had resided in England for many years. MH, after being widowed at a young age in Pakistan, moved to England to reside with her brother Mr C. He had apparently financially supported her and her daughter since the death of her husband. Mr C, the brother of MH, moved to Ireland to start up a business, as he was free to do as a European Union citizen. MH and SH moved with him. In May 2015, MH and SH applied for EU1 Residence Cards. In November of that year, the applications were refused by the Minister. In February 2017, an application to review that decision also resulted in a refusal to grant the residence card on the basis that MH and SH did not meet the requirements. The Minister at that time issued notifications in respect of MH and her daughter SH that proposed to make a deportation order pursuant to s 3 of the Immigration Act 1999, as amended. However, it was not until 5 September 2018, some 18 months following on from that correspondence, that such a deportation order was notified to MH and SH by what is called s 3(3)(b)(ii) notice. The deportation orders themselves were signed by the Minister about a fortnight earlier on 24 August 2018.
MH and her daughter SH brought judicial review proceedings against the Minister's issuance of the deportation order. This came on for hearing before Barrett J. The High Court quashed the order on a number of grounds, which have not been appealed, and the judgment also indicated a view that the delay between the proposal for deportation and the making of the order itself gave rise to substantive and procedural rights; Barrett J 22 July 2020 [2020] IEHC 360. This judgment was sought to be appealed directly to this Court and by Determination dated 22 December 2020, leave to directly appeal was granted; [2020] IESCDET 148. The determination granted leave on the following issue:
What matters here…is the time delay point and the application of constitutional principles and of principles from the European Convention on Human Rights to the gap as between refusal of permission and the issuance of a deportation order.
An issue paper agreed by the parties outlined the relevant questions in more expansive form than the leave granted by the Court:
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1. Whether the delay of 18 months between the notification of the refusal to remain/proposal to deport and the notification of the decision to deport in respect of the Respondents/Applicants forms part of the ratio of the High Court decision, as opposed to obiter dicta.
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2. Whether the delay of 18 months between the notification of the refusal to remain/proposal to deport and the notification of the decision to deport in respect of the Respondents/Applicants has the effect that the making of the deportation orders amounts to a breach of the constitutional rights and/or the ECHR rights of the Respondents/Applicants.
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3. Whether the Charter of Fundamental Rights of the European Union applies to the making of the deportation orders in respect of the Respondents/Applicants, and if it does so apply, whether the delay of 18 months between the notification of the refusal to remain/proposal to deport and the notification of the decision to deport in respect of the Respondents/Applicants has the effect that the making of the said deportation orders amounts to a breach of such rights as may be enjoyed by the Respondents/Applicants pursuant to the Charter.
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4. Whether the delay of 18 months between the notification of the refusal to remain/proposal to deport and the notification of the decision to deport in respect of the Respondents/Applicants vitiates the deportation orders made in respect of the Respondents/Applicants at the conclusion of that period.
It is unnecessary to again analyse the basic principles regarding the precarious nature of non-nationals without permission to enter a State which is party to the European Convention on Human Rights, or to pursue any answer to arguments that Charter rights somehow transform the entitlements of non-nationals beyond those provided for already in European Union legislation. Family rights, the Constitution and the Charter, have been considered in Esmé v Minister for Justice and Law Reform [2015] IESC 26 and A, S and S and I v Minister for Justice and Equality [2020] IESC 70, Dunne J, and Prudence v Minister for Justice and Equality [2015] IESC 64, and in many other decisions. Nor is any further consideration required in this judgment of the meaning of who constitutes, and in what circumstances they may be taken as constituting, a member of the household of an EU citizen for the purposes of rights of free movement, since this has been the subject of a reference in S & anor v Minister for Justice and Equality [2020] IESC 78 (C-22/21) and the interpretation of the directive has been considered in S & anor v Minister for Justice and Equality [2020] IESC 78. The facts here, as they seem to be, and these are a matter for the Minsiter, are rather simple and require little further in terms of analysis than their statement, effectively mere reiteration, below.
One matter, however, emerges from the papers in this matter as requiring comment. With the benefit, in early course, of the decision of the Court of Justice of the European Union in S & Another it will no doubt be easier for the Minister to decide as to who may be a member of an EU citizen's...
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