Nagra v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 05 June 2018
• Neutral Citation: [2018] IEHC 398
• Docket Number: [2018 No. 200 J.R.]
• Court: High Court
• Date: 05 June 2018

BETWEEN

JAZAB AZEEM NAGRA

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

IRELAND, THE ATTORNEY GENERAL

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTIES

[2018] IEHC 398

[2018 No. 200 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Deportation – Certiorari – Dependency – Applicant seeking certiorari of a deportation order – Whether insufficient regard was had to evidence of dependency

Facts: The applicant, Mr Nagra, was a Pakistani national. His older brother moved to the UK in 2007 and became a citizen of that country. The applicant followed his brother to the UK in 2012 and then to the State on 20th February, 2015. On 5th August, 2015 he applied for a residence card as a permitted family member. Intermittently between 2nd May, 2016 and 21st May, 2017 he was given a stamp 4 permission as an applicant for a residence card but was not present on a settled basis. On 16th May, 2016 his application for residency was refused. On 26th June, 2017 his application for review of the refusal of a residency card was dismissed. On 26th January, 2018 a deportation order was made. The applicant applied to the High Court seeking certiorari of the deportation order. He contended that a relationship between adult siblings does not require wholly exceptional circumstances to give rise to an art. 8 issue, that undue weight was placed on the refusal of residency and that insufficient regard was had to evidence of dependency as of January, 2015.

Held by Humphreys J that the applicant was an unsettled migrant and thus exceptional circumstances were required. Humphreys J held that the reference to the previous decisions was in the context of a finding that there was no evidence of more than normal emotional dependency; the earlier decisions were simply facts being legitimately considered in that context as background and material that could be lawfully referred to, not as independent reasons for making of a deportation order. Humphreys J held that there was no basis to say that insufficient regard was had to up-to-date evidence of dependency seeing as the respondent, the Minister for Justice and Equality, stated that all submissions were considered. Humphreys J held that the applicant had not demonstrated that this was not so.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of June, 2018

1 The applicant is a Pakistani national. His older brother moved to the U.K. in 2007 and is now a citizen of that country. The applicant followed his brother to the U.K. in 2012 and then to the State on 20th February, 2015. On 5th August, 2015 he applied for a residence card as a permitted family member. Up to 2nd May, 2016 he was here unlawfully. Intermittently between 2nd May, 2016 and 21st May, 2017 he was given a stamp 4 permission as an applicant for a residence card but clearly was not present on a settled basis. On 16th May, 2016 his application for residency was refused. After 21st May, 2017 he was unlawfully present in the State. The applicant is not a settled migrant on any view, and indeed counsel accepts this on his behalf.

2 On 26th June, 2017 his application for review of the refusal of a residency card was dismissed. On the same date a proposal to make a deportation order was made. On 17th July, 2017 and subsequent dates, submissions were made in that regard. On 26th January, 2018 a deportation order was made.

3 I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Shannon Michael Haynes B.L.) for the applicant and from Ms. Emily Farrell B.L. for the respondent and the first and second notice parties.

Relief sought

4 The primary substantive relief is certiorari of the deportation order. I note that no challenge was made to the refusal of residency, so caselaw such as Khan v. Minister for Justice and Equality [2017] IEHC 800 [2017] 10 JIC 2712 (Unreported, Faherty J., 27th October, 2017) (currently under appeal) does not apply.

Ground 1 - Contention that a relationship between adult siblings does not require wholly exceptional circumstances to give rise to an art. 8 issue.

5 It is clear that deportation of an unsettled migrant only gives rise to breach of art. 8 in exceptional circumstances: C.I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385, P.O. v. Minister for Justice and Equality [2015] 3 I.R. 164 [2015] IESC 64; see also John Stanley, Immigration and Citizenship Law (Dublin, 2017) at pp. 397 et seq. citing Costello-Roberts v. the United Kingdom [1993] 19 E.H.R.R. 112 (Application no. 13134/87, European Court of Human Rights, 25th March, 1993) and P.S.M. v. Minister for Justice and Equality [2016] IEHC 474 [2016] 7 JIC 2930 (Unreported, High Court, 29th July, 2016).

6 The examination of file stated that the relationship between adult relatives was not ' usually' covered by art. 8 of the ECHR, as...