MK v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 16 April 2021
• Neutral Citation: [2021] IEHC 275
• Docket Number: Record no. 2019/907 JR
• Date: 2021
• Court: High Court

Between:

MK

Applicant

and

Minister for Justice and Equality

Respondent

[2021] IEHC 275

Record no. 2019/907 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Permission to remain – International Protection Act 2015 s. 49 – Applicant seeking an order of certiorari quashing a review decision pursuant to s. 49 (7) of the International Protection Act 2015 – Whether the manner in which the International Protection Act 2015 is operated by the respondent has incorrectly blurred the distinction between international protection and permission to remain decisions

Facts: On 30 October 2018, Mr Fitzgerald, a case worker within the International Protection Office, determined that the applicant should not be given a permission to remain in the State pursuant to s. 49 of the International Protection Act 2015. An application under s. 49(9) for a review of the refusal of permission to remain was submitted on 18 October 2019. On 25 November 2019, Ms Byrne, a case worker in the International Protection Office, affirmed the earlier s. 49 refusal and refused the applicant permission to remain having conducted a review pursuant to s. 49(7). On 17 February 2020, a deportation order issued against the applicant. Leave was granted by the High Court to the applicant to apply by way of judicial review for an order of certiorari quashing the s. 49(7) review decision and the deportation order. The grounds of challenge to the s. 49(7) decision and the deportation order were that there is a procedural right to have a proportionality assessment conducted in relation to Article 8 of the European Convention on Human Rights (the ECHR) in the case of a non-settled migrant or a person with a precarious residence status, pursuant to the ECHR and/or the Constitution, which was not carried out in this matter; that there was a failure to give reasons to explain why the interests of the State outweighed the applicant’s rights pursuant to Article 8 ECHR and Article 40.3 of the Constitution; that the s. 49(7) decision was not lawfully made as it was made by an International Protection Officer (an IPO) who cannot lawfully act for and on behalf of the respondent, the Minister for Justice and Equality; that the manner in which the 2015 Act is operated by the respondent has incorrectly blurred the distinction between international protection and permission to remain decisions thereby rendering the decision invalid; and that there was an error on the face of the s. 49 decision.

Held by Burns J that, in a situation where Article 8 rights were found not to be engaged and any private rights arising under the Constitution were acquired in a situation when the applicant knew that his legal situation was precarious, the Court failed to see that the applicant had acquired a procedural right guaranteed under the Constitution to have a proportionality test conducted. Burns J did not accept that there had been an inadequacy to provide reasons in the s. 49(7) review decision having regard to the contents of the original s. 49(4) decision. Burns J was of the view that the Carltona principle (Carltona Ltd v Commissioners of Public Works [1943] 2 All E.R. 560) had not been displaced in this instance and that IPOs, acting in their separate role as officers of the respondent, to that of an IPO in respect of which they have independence, can make decisions on behalf of the respondent pursuant to s. 49. Burns J found that the International Protection Office operates on a divisional basis with separate divisions making international protection decisions, permissions to remain decisions and review of permission to remain decisions; training is provided relating to the different functions which staff within the office perform and the roles which they have. Accordingly, Burns J did not accept that there is a lack of clarity regarding the roles which each division perform or that there has been a blurring of the distinction provided for in the 2015 Act. Burns J held that no error appeared on the face of the record. Burns J held that the grounds of challenge to the s. 49 decision relating to the applicant had not been made out.

Burns J refused the relief sought and made an order for the respondent’s costs as against the applicant.

Relief refused.

JUDGMENT of Ms Justice Tara Burns delivered on 16th day of April, 2021

General

1 The Applicant is a national of Albania who entered the State in September 2016 as an unaccompanied minor and was assisted by Tusla in making an application for international protection in June 2017.

2 The Applicant was granted permission to access the labour market from 13 August 2018 as his international protection claim had not by then been determined.

3 On 26 September 2018, an International Protection Officer (hereinafter referred to as “an IPO”), Ms Caroline McGlinchey, recommended that the Applicant be refused a refugee or subsidiary protection declaration.

4 On 30 October 2018, Mr Shay Fitzgerald, a case worker within the International Protection Office, determined that the Applicant should not be given a permission to remain in the State pursuant to s. 49 of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”).

5 The Applicant lodged a notice of appeal against the recommendation of the IPO on 21 November 2018.

6 The International Protection Appeals Tribunal affirmed the recommendation of the IPO on 7 October 2019 recommending a refusal of refugee and subsidiary protection declarations.

7 An application under s. 49(9) for a review of the refusal of permission to remain was submitted on 18 October 2019. This application drew attention to the fact that the Applicant had been residing in the State for over three years; had arrived in the State as an unaccompanied minor and was assisted by Tusla in making an application for international protection; and had been working in the Beachcomber restaurant in Malahide since he was granted permission to access the labour market. It was submitted that he was a hard worker and wanted to someday open up his own business. He was very popular in his community and believed that he made a positive contribution to the State and society.

8 This application was accompanied by supporting documentation, notably in the form of 13 reference letters attesting to the Applicant's activities in the State; his integration into Irish society; his connections with the State; his good character and conduct; his educational background; and his employment activities and future prospects.

9 On 25 November 2019, Ms Ruth Byrne, a Case Worker in the International Protection Office affirmed the earlier s. 49 refusal and refused the Applicant permission to remain having conducted a review pursuant to s. 49(7) of the 2015 Act. The statement of reasons in relation to this s. 49 review decision, was signed by “Ruth Byrne, Case Worker, International Protection Office” and concluded with a paragraph headed “Decision under Section 49(4) of the Act” which stated, inter alia:-

“The applicant's case was considered under Section 49 and Section 50 of the International Protection Act 2015, on review. Refoulment was not found to be an issue in this case. Consideration was also given to private and family rights under Article 8 of the European Convention on Human Rights (ECHR).

Having considered the applicant and the particular circumstances of this case and the applicant's right to respect for his private and family life, I affirm the decision dated 31/10/2018 that the Applicant MK should not be given a permission to remain in the State under section 49 of the 2015 Act.” ( emphasis added).

10 On 4 December 2019, the Applicant was notified of the outcome of the s. 49(7) review by a letter from the Department of Justice and Equality in the following terms:-

“Permission to Remain Decision

You were previously informed by the International Protection Office that the Minister had decided to refuse you a permission to remain in the State under Section 49 of the 2015 Act. This decision was reviewed because you submitted further information under section 49(9). Having considered this information, the Minister has decided that there has been no material change in your personal circumstances or country of origin circumstances concerning prohibition of refoulement contrary to section 50. Consequently, I must inform you that the Minister has decided, pursuant to section 49(4)(b) of the 2015 Act, to refuse you permission to remain in the State. A statement of reasons for this decision is enclosed.”

11 On 17 February 2020, a deportation order issued against the Applicant.

12 Leave was granted by the High Court to the Applicant to apply by way of Judicial Review for an order of Certiorari quashing the s. 49(7) review decision and the deportation order. Leave was not sought to challenge the original s. 49 refusal of permission to remain decision.

13 In summary, the grounds of challenge to the s. 49 (7) decision and the deportation order are that there is there is a procedural right to have a proportionality assessment conducted in relation to Article 8 of the European Convention on Human Rights (hereinafter referred to as “the ECHR”) in the case of a non-settled migrant or a person with a precarious residence status, pursuant to the ECHR and/or the Constitution, which was not carried out in the instant matter; that there was a failure to give reasons to explain why the interests of the State outweighed the Applicant's rights pursuant to Article 8 ECHR and Article 40.3 of the Constitution; that the s. 49(7) decision was not lawfully made as it was made by an IPO who cannot lawfully act for and on behalf of the Respondent; that the manner in which the 2015 Act is operated by the Respondent has incorrectly blurred the distinction between international protection and permission to remain decisions thereby rendering the decision invalid; and that there is...