N.N. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 470
• Docket Number: [2016 No. 30 J.R.]
• Court: High Court
• Date: 29 July 2016

[2016] IEHC 470

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 30 J.R.]

BETWEEN

N.N.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL

AND

IRELAND

RESPONDENT

Asylum, Immigration & Nationality – S. 3 (11) of the Immigration Act 1999 – Revocation of deportation – Refusal – Committal of offence – Imprisonment – Breach of constitutional and human rights

Facts: Following the refusal of the Court to permit the applicant to challenge the original deportation order as it was out of time, and grant of leave by the Court to plead claim in relation to breach of applicant's constitutional and lack of social assistance, the applicant now contended that he was not provided any social assistance and that he was unable to work in contravention of his constitutional rights.

Mr. Justice Richard Humphreys refused to grant the desired reliefs to the applicant. The Court held that it could not recognise economic, social or entitlement of work in relation to the illegal migrants and deportees such as the present applicant. The Court held that it would against the principles of the Constitution to recognise the right to work and social assistance to a deportee as it would cause additional financial burden on the State and contravene the entire migration policy formulated in that regard. The Court found that the applicant had not presented any evidence alleging contravention of his human rights enshrined under the European Convention on Human Rights. The Court found that the conduct of the applicant in failing to assist his solicitors and the concerned immigration department would go against the grant of any relief in support of the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicant states that he left Algeria in 1987 and lived in France, the United Kingdom, Italy and Spain for various periods. Despite hailing from Algeria, he asserts what the Minister has described in correspondence as ' self-styled' statelessness, a status which would appear from the papers to be pure invention on his part. It might suit the applicant to claim to be stateless, but he has furnished no basis whatever as to why he would not be in a position to assert his Algerian nationality.

2 He sought asylum in the State in 1999. That application was refused.

3 A proposal to deport him was made in 2001. Pending a decision on that proposal, he was granted temporary permission to remain in the State for a three-year period in 2007. That permission duly expired in 2010 and he has been illegally present in the State ever since.

4 On 23rd November, 2011, a deportation order was made against him.

5 On 21st January, 2015, he made an application under s. 3(11) of the Immigration Act 1999 for revocation of the deportation order. That application was refused on 29th October, 2015. The letter of refusal noted that the applicant had been evading the Garda National Immigration Bureau (G.N.I.B.).

6 By further letter dated 9th November, 2015, the Minister offered to pay for the costs of repatriation, if the applicant was unable to do so.

7 The present judicial review was filed on 20th January, 2016. In the original papers presented at the leave application, the applicant sought certiorari of the original 2011 deportation order, as well as a declaration and damages in relation to alleged breaches of the ECHR as implemented by the European Convention on Human Rights Act 2003, in relation to the lack of social provision for the applicant.

8 During his time in the State, the applicant has committed a number of criminal offences, and has been detained in Cloverhill Prison as recently as October 2015. Mr. Killian McMorrow B.L. for the applicant stated at the leave stage that his client is currently homeless.

9 The applicant recently presented himself to the G.N.I.B., at the prompting of the court it must be said, but since June, 2016 has gone underground and has not make contact with Gardaí or his solicitors.

The leave hearing

10 I heard the leave application in this case on 25th January, 2016. At the leave stage I refused to permit the applicant to challenge the deportation order (a challenge which is several years out of time). I was not minded to permit him to amend the pleadings to impugn the refusal under s. 3(11) of the Immigration Act 1999, because that challenge would also be out of time. No basis for an extension of time exists. Even if a basis did exist, no grounds have been made out to the level of arguability, let alone substantial grounds, as to why that refusal is invalid. On the contrary, it appears to be entirely reasonable.

11 On 2nd February, 2016 I gave leave, with liberty to make certain amendments, to challenge the failure to make provision for social assistance to, or permit the employment of, the applicant on the basis of an alleged incompatibility with the ECHR. At that stage I asked Mr. McMorrow whether he wished to include the housing authority (Dublin City Council) in the challenge and he indicated that he did not.

The first substantive listing

12 When the matter was first listed for hearing on 29th April, 2016 before Faherty J., the applicant sought an adjournment to enable Senior Counsel to be briefed. This application was acceded to and the matter was re-listed for 1st June, 2016.

The second substantive listing

13 The matter then came before me for substantive hearing on 1st June, 2016. At that point, Mr. Michael Forde S.C. (with Mr. McMorrow) appeared for the applicant and sought a series of amendments at the outset, specifically:-

(i) a plea relating to a breach of constitutional rights;

(ii) a plea relating to a breach of the EU Charter of Fundamental Rights;

(iii) an application to add Dublin City Council as a respondent.

14 These amendments were opposed by Mr. John Healy S.C. (with Ms. Eva Humphreys B.L.) for the respondents.

15 I have previously set out the requirements for amending judicial review pleadings in B.W. v. Refugee Appeals Tribunal & ors [2015] IEHC 725 (Unreported, High Court, 17th November, 2015) and S.O. v. Minister for Justice and Equality & ors [2015] IEHC 821 (Unreported, High Court, 21st December, 2015) based on the Supreme Court decisions in Keegan v. Garda Síochána Ombudsman Commission [2012] 2 I.R. 570 and O'Neill v. Applebe [2014] IESC 31 (Unreported, Supreme Court, 10th April, 2014).

16 The three key requirements to permit an amendment are:-

(i) arguability;

(ii) explanation;

(iii) lack of irremediable prejudice.

17 As regards arguability, I was of the view on the submissions made at that point that the constitutional plea was arguable insofar as it related to the prohibition on employment and the failure to provide social assistance. The EU Charter plea is not arguable because the deportation of an illegal third country immigrant who is not entitled to rely on EU Treaty rights is a matter of domestic, not EU law. The applicant relied on the Opinion of Advocate General Bot in Case C-562/13, Centre Public d'Action Sociale v. Abdida (18th December, 2014), but that is a decision under the return directive (2008/115/EC) which does not apply to Ireland. The EU Charter therefore simply does not apply in this case. Adding Dublin City Council as a respondent is not appropriate because that was rejected by the applicant at the leave stage and in any event relates to a specific decision making process which would require to be set up for judicial review by specific reference to a statutory application and a refusal to grant it in a way that goes beyond merely adding in the council to a general challenge to legislative provisions on employment and social assistance. The claims relating to lack of housing and healthcare seem to depend on a failure to make administrative decisions in favour of the applicant and are not in the same category of statutory prohibition or non-provision as the claims in relation to the ban on employment and the lack of social assistance. It is not arguable that the applicant has been deprived of healthcare and housing by the State as such where he has failed to pursue that matter in a structured way with the statutory bodies having operational responsibility for those services. To allow amendments to deal with such matters would truly be an ' entirely new case', as submitted by Mr. Healy.

18 As regards explanation, Mr. Forde stated that the amendments sought were not originally included due to oversight on the part of the applicant's legal advisers, and I accepted that explanation insofar as it relates to the constitutional issues to which I have referred.

19 As regards lack of irremediable prejudice, I considered that any prejudice suffered by the State was not irremediable.

20 Mr. Healy raised various other objections to the amendments including that the original letter from the Minister was not challenged if it constitutes a decision (it does not, it is a statement of her position), alleged delay in the proceedings overall and as regards the ECHR...