Mun v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice Richard Humphreys
Judgment Date10 May 2018
Neutral Citation[2018] IEHC 369
Docket Number[2017 No. 609 J.R.]
CourtHigh Court
Date10 May 2018

[2018] IEHC 369

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 609 J.R.]

BETWEEN
LEOW KWAN MUN, FOO LAY HUN, CHUN HEE LEOW (A MINOR SUING BY HIS FAThER AND NEXT FRIEND LEOW KWAN MUN),

AND

RENEE LEOW (A MINOR SUING BY HIS FATHER AND NEXT FRIEND LEOW KWAN MUN)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND
RESPONDENTS

Deportation – Revocation – Certiorari – Applicants seeking certiorari of revocation refusals – Whether there was a failure to treat the applicants similarly to similarly situated persons

Facts: The first and second applicants are partners and are nationals of Malaysia. They are the parents of the third and fourth minor applicants born in Ireland in 2011 and 2012. The first applicant said he arrived in Ireland in 2002 and that his partner arrived in 2003. Neither of them had permission to be in the State. On 22nd February, 2011 the second applicant was granted a stamp 2 student permission until 3rd February, 2012. On 10th August, 2011 the first applicant was given a similar permission until 3rd February, 2012. Neither permission was extended and no subsequent permissions were given to any of the applicants. The applicants were subject to a proposal to make deportation orders, on foot of which they applied for leave to remain on 28th April, 2016. Deportation orders were made on 29th July, 2016, which were never challenged. On 16th and 20th September, 2016 the applicants sought revocation of the deportation orders under s. 3(11) of the Immigration Act 1999. Those applications were refused by notification dated 17th July, 2017. The High Court (Humphreys J) granted leave for proceedings seeking certiorari of the revocation refusals, on 23rd October, 2017. On 11th January, 2018 the minor children applied for certificates of nationality contending that they were not Malaysian citizens and therefore claiming to be Irish citizens by operation of law. The applicants challenged the revocation refusals on the following grounds: 1) the failure to treat the applicants similarly to similarly situated persons; 2) irrationality or breach of constitutional rights; 3) the failure to lawfully consider art. 8 of the ECHR; 4) the failure to consider the best interests of the child and selective reading of court decisions; 5) the failure to consider the rights of the children under Article 42A of the Constitution; 6) an allegation of fettering discretion by not conducting a substantive and qualitative analysis of the facts and circumstances of the applicants; 7) an alleged deferral to the original decision; 8) an allegation that the first respondent, the Minister for Justice and Equality, irrationally concluded that the children would be entitlement to Malaysian citizenship or failed to consider their entitlement to Irish citizenship and/or acted outside jurisdiction; 9) an alleged misapplication of the case law.

Held by Humphreys J that: 1) it is not unlawful for the Minister to refuse to revoke a deportation order simply because other relatives of an applicant have been in the State for a long time; 2) no irrationality or breach of constitutional rights had been established; 3) well-established case law under the ECHR makes clear that the deportation of unsettled migrants breaches art. 8 only in exceptional circumstances, which did not arise in this case; 4) best interests are not directly applicable to immigration decisions under Article 42A and only arise indirectly by art. 8; 5) illegal immigrant children have no right not to be removed pursuant to Article 42A; 6) there is no obligation at the revocation stage to revisit all s. 3 matters; 7) affirming the original decision does not amount to failing to consider whether it should be revoked; 8) it was procedurally inappropriate to quash the decision on a basis that was not put to the Minister; and 9) no misdirection of law had been made out.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of May, 2018
1

The first and second named applicants are partners and are nationals of Malaysia, born in 1977 and 1980 respectively. They are the parents of the third and fourth named minor applicants born in Ireland in 2011 and 2012. The first-named applicant says he arrived in Ireland in 2002 and that his partner arrived in 2003. Neither of them had permission to be in the State. The first knowledge the Minister had of their presence dates from 2011 when on 22nd February, 2011 the second named applicant was granted a stamp 2 student permission until 3rd February, 2012.

2

On 10th August, 2011 the first named applicant was given a similar permission until 3rd February, 2012. Neither permission was extended and no subsequent permissions were given to any of the applicants. The applicants were subject to a proposal to make deportation orders, on foot of which they applied for leave to remain on 28th April, 2016. Deportation orders were made on 29th July, 2016, which were never challenged.

3

On 16th and 20th September, 2016 the applicants sought revocation of the deportation orders under s. 3(11) of the Immigration Act 1999. Those applications were refused by notification dated 17th July, 2017.

4

I granted leave for the present proceedings seeking certiorari of the revocation refusals, on 23rd October, 2017. On 11th January, 2018 the minor children applied for certificates of nationality contending that they were not Malaysian citizens and therefore claiming to be Irish citizens by operation of law.

5

I have heard helpful submissions from Mr. Michael Conlon S.C. (with...

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1 cases
  • F.A.F. (Nigeria) v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 12 Aprile 2019
    ...and Equality [2016] IEHC 468 [2016] 7 JIC 2924 (Unreported, High Court, 20th July, 2016), Mun v. Minister for Justice and Equality [2018] IEHC 369 [2018] 5 JIC 1011 (Unreported, High Court, 10th May, 2018), H.A. (Chad) v. Minister for Justice and Equality [2019] IEHC 57 [2019] 1 JIC 2......

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