MK (Albania) v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell,Mr. Justice John MacMenamin,Ms. Justice Iseult O'Malley,Ms. Justice Baker,Mr. Justice Gerard Hogan
• Judgment Date: 24 November 2022
• Neutral Citation: [2022] IESC 48
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000064

Between/

MK (Albania)

Appellant

and

Minister for Justice & Equality

Respondent

[2022] IESC 48

O'Donnell C.J.

MacMenamin J.

O'Malley J.

Baker J.

Hogan J.

S:AP:IE:2021:000064

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Asylum & immigration – International Protection – ECHR Rights - Deportation order – Whether assessment by Minister invalid

The appellant had arrived in the State as an unaccompanied minor in 2016. He applied for International Protection in 2017. This was eventually refused, and the appellant was later served with a Deportation Order and refused permission to remain. The High Court had refused to quash the Minister’s refusal to grant permission to remain and subsequent deportation order. The matter now came before the Supreme Court.

The Supreme Court, by a majority of 3-2 dismissed the appellant’s appeal. The Court was unanimous in ruling that the Minister’s assessment of the appellant’s ECHR Article 8 rights was incorrect. This error was as a result of following the Court of Appeal in the earlier case of C.I. & others v the Minister for Justice, Equality & Law Reform [2015] IECA 192. However, the Court held by a majority that this did automatically not mean that the decision breached the appellant’s rights or was invalid.

The minority (MacMenamin and Baker JJ.) held that the decision was invalid and therefore would have granted certiorari.

Judgment of Mr. Justice O'Donnell, Chief Justice dated the 24 ^th day of November, 2022

Introduction

1 . The facts in this case can be stated briefly. MK arrived in this State from Albania on 13 September, 2016 aged 16. He moved in with a foster family, attended school and later took a break from his schooling in order to work. He made friends at school and at work. He applied for international protection with the assistance of Tusla — Child and Family Agency in June, 2017. His application for refugee status and subsidiary protection was unsuccessful. This case solely concerns his application for leave to remain on humanitarian grounds under section 49(3) of the International Protection Act, 2015 (“2015 Act”). The initial decision was made on 31 October, 2018. At that point he had been in the State for less than 2 years, and of that period only the period between June, 2017 and October, 2018 he can even be said to have lawful albeit, in the language of the European Court of Human Rights (“ECtHR”), “precarious” residence, in that his permission to be in Ireland was for the currency of his application for international protection. There was no question of refusal of leave to remain affecting any family ties or anything unusual in his life or history. He had lived almost 16 years in Albania and subsequently two years as a teenager in Ireland. Refusal of leave to remain meant that he would have to leave Ireland, and if he did not do so voluntarily, that he could be deported.

2 . The analysis of the case worker in the International Protection Office of the Minister for Justice and Equality's (the “Minister”) Department (which, for reasons addressed by MacMenamin and Hogan JJ. in their judgments, is to be treated as the decision of the Minister) was conducted by reference to the then applicable case law and, in particular, the decision of this Court in P.O. & Anor. v. The Minister for Justice & Equality & Ors. [2014] IESC 5, [2014] 2 I.R. 485, and the decision of the Court of Appeal (Finlay Geoghegan J., Ryan P., and Peart J.) in C.I. & Ors. v. The Minister for Justice, Equality & Law Reform [2015] IECA 192, [2015] 3 I.R. 385 (“ C.I.”), and the decision of the House of Lords in R (Razgar) v. Secretary of State for the Home Department [2004] UK HL 27, [2004] 2 A.C. 368 (“ Razgar”). At paragraph 17 of his judgment in Razgar, Lord Bingham of Cornhill set out five questions that should be addressed when removal is resisted in reliance of Article 8 of the European Convention on Human Rights (“the Convention”). Those questions were set out in the Minister's analysis. The Razgar questions are as follows:-

• i. “Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

• ii. If so, will such interference have consequences of such gravity as potentially to engage the operation of Art. 8?

• iii. If so, is such interference in accordance with the law?

• iv. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

• v. If so, is such interference proportionate to the legitimate public end sought to be achieved?”

3 . Having considered the decision in C.I., the International Protection Officer concluded that the potential interference with private life would not have consequences of such gravity as to potentially engage the operation of Article 8 and accordingly a decision to refuse the applicant permission to remain did not constitute a breach of the right to respect for private life under Article 8(1) of the Convention. The case officer addressed first, private life and then family life under Article 8 and that the ECtHR had concluded that it is likely only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8. He continued; “[h]aving considered all information submitted on behalf of the applicant, it is not accepted that there are any exceptional circumstances arising… [and] it is not accepted that such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8(1)”. No issue arises in relation to the assertion of interference with family life. In respect of the question of interference with respect for private life, it is apparent that the decision was made that the applicant's case did not satisfy the second question posed by Lord Bingham: that is, whether removal would be an interference with private life having consequences of such gravity as to potentially to engage the operation of Article 8.

4 . The applicant's appeal to the International Protection Appeal Tribunal in relation to international protection was dismissed by a decision dated 7 October, 2019. By a letter dated 18 October, 2019 solicitors on behalf of the applicant sought a review of the Minister's decision under section 49 of the 2015 Act, revisiting some of the contentions made in the course of the application for international protection but also contending that refusal of leave to remain would be extremely disruptive to his life and deportation would represent a disproportionate interference with his private life in the State and therefore a breach of both Article 8 of the Convention and Article 40.3 of the Constitution.

5 . A detailed letter of decision was issued dated 25 November, 2019. Insofar as is relevant to the present case, it stated that it was not accepted that such potential interference will have consequences of such gravity as potentially to engage the operation of Article 8(1). It appears clear that this was a finding that the claim failed to satisfy the second limb of the analysis set out in Razgar and adopted in this jurisdiction in C.I.

6 . The applicant's claim was that a refusal of leave to remain would be a breach of his right to respect for his private life guaranteed by Article 8 of the Convention, and/or his asserted right to a private life protected by the Irish Constitution. As such, his claim is one based on what might be said to be the basic unit of private life protection under either the Convention or the Constitution. The life in question, and which was likely to be affected by a refusal of leave to remain, was the life he had lived in Ireland between 2016 and 2019. A consequence of the refusal of leave to remain would be that he would have to leave that life and live elsewhere. It was not suggested, however, that there was any other feature of his life which had to be taken into account in that analysis, such as considerations of physical or mental health, or sexual orientation, or an intimate or other relationship and still less, any family ties. Furthermore, the life the applicant had enjoyed in Ireland and, therefore, the private life capable of being affected by the refusal of leave to remain, was one where his residence in this country was, in the terminology adopted by the ECtHR, “precarious”, that is, his only entitlement to be in Ireland during that time was while his application for asylum and subsidiary protection was being addressed and determined. The case raises neatly, therefore, the issue debated in this appeal: how should the question of the impact upon the applicant's private life of a decision of a refusal of leave to remain and/or removal from Ireland be approached and analysed under Article 8?

7 . As set out in the judgment of MacMenamin J., the basis of the Ministerial decision was an application of the five-part Razgar test which is set out at paragraph 17 of the judgment of Lord Bingham in that case and adopted by the Irish Court of Appeal in C.I., and indeed by the Irish High Court in a number of cases since then. The Ministerial decision followed C.I.and determined that the applicant's case did not exhibit any exceptional feature, such that the decision to refuse leave to remain could be said to have consequences of such gravity for the applicant as potentially to engage the operation of Article 8, and thus the case failed at the second hurdle of the Razgar test. For reasons set out in the careful judgment of MacMenamin J., with which I agree, it cannot be said that this approach is required by the Convention, or the case law of the ECtHR and should not be adopted.

8 . The point...