Nawaz v Min for Justice & AG

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 07 July 2011
• Neutral Citation: [2011] IEHC 459
• Docket Number: [No. 3363P/2009]
• Court: High Court
• Date: 07 July 2011

[2011] IEHC 459

THE HIGH COURT

[No. 3363P/2009]

Nawaz v Min for Justice & Ors

BETWEEN

HAQ NAWAZ

PLAINTIFF

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3(3)(B)

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 45

P (F) & L (A) v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

BODE v MIN FOR JUSTICE 2008 3 IR 663 2007/6/1033 2007 IESC 62

OSHEKU v IRELAND & ORS 1987 ILRM 330 1986/7/1474

C (L) v MIN FOR JUSTICE 2007 2 IR 133

IMMIGRATION ACT 1999 S3(11)

KIRWAN INJUNCTIONS: LAW & PRACTICE 2008 PARA 10.55

CROTTY v AN TAOISEACH & ORS 1987 IR 713

IMMIGRATION LAW

Deportation

Interlocutory injunction - Constitutionality of legislative scheme for deportation - Inability to leave State voluntarily where rejection of representations following notification of proposal to make deportation order - Alleged disproportionate interference with personal rights - Right to good name - Right to earn livelihood - Interference with family life - Criteria for grant of interlocutory injunction - Whether fair issue to be tried - Balance of convenience - Whether damages adequate remedy - Whether application premature - Possibility of judicial review or application to revoke - Campus Oil v Minister for Industry and Energy (No 2) [1983] 1 IR 88; FP v Minister for Justice [2002] 1 IR 164; Bode (a minor) v Minister for Justice, Equality and Law Reform [2007] IESC 62, [2008] 3 IR 663; Osheku v Ireland [1986] IR 733; LC v Minister for Justice [2006] IEHC 36, [2006] IESC 44, [2007] 2 IR 133 and Crotty v Ireland [1987] IR 713 considered - Immigration Act 1999 (No 22), s 3 - Application refused (2009/3363P - Laffoy J - 7/72011) [2011] IEHC 459

Nawaz v Minister for Justice, Equality and Law Reform

Miss Justice Laffoy

1 2 1.1 This is an application brought by the plaintiff on foot of a notice of motion dated 20^th May, 2011 seeking an order restraining the first defendant (the Minister) from issuing a deportation order in respect of the plaintiff. Although this is not clear on the face of the notice of motion, the application is for an interlocutory injunction pending the trial of the action.

2 2.1 The factual background to these proceedings is set out in my judgment delivered on 25^th May, 2011 (the May judgment), in which I refused an application by the defendants to dismiss these proceedings under the Court's inherent jurisdiction on the basis that they were bound to fail. That judgment is under appeal to the Supreme Court.

3 2.2 As I have outlined in the May judgment, the only relief which the plaintiff seeks in these proceedings is declaratory relief, in particular, a declaration that s. 3 of the Immigration Act 1999 (the Act of 1999) is repugnant to the Constitution and incompatible with the European Convention on Human Rights (the Convention). I have set out in para. 2.3 of the May judgment the basis on which the plaintiff alleges -

4 (a) repugnancy to the Constitution (that s. 3 disproportionately interferes with his personal rights, including his right to his good name and his right to earn a livelihood in breach of Article 40.3.1 and Article 40.3.2 and that it disproportionately interferes with his right to marriage and family life in breach of Article 41) and

5 (b) incompatibility with the Convention (that it interferes with his private life in a manner not necessary in a democratic society by disproportionately interfering with his right to privacy under Article 8).

6 The nub of the plaintiff's challenge (as I pointed out in para. 5.7 of the May judgment) is that, where the Minister notifies a person of a proposal to make a deportation order (as had happened in the case of the plaintiff by a notice dated 23^rd February, 2006) and the person to whom the notice is given makes representations to the Minister in accordance with s. 3(3)(b) (as the plaintiff did in response to the notice of 23^rd February, 2006), if the Minister rejects the representations, the person is not afforded an opportunity to leave the State voluntarily without a deportation order being made against him. In this case, the Minister did not make a decision either to make or not make a deportation order on foot of the notification of 23^rd February, 2006 and the plaintiff's representations.

7 4 2.3 What happened while the judgment on the defendants' motion to dismiss the proceedings was awaited (admittedly for far too long) was that the Minister issued a fresh notification to the plaintiff pursuant to s. 3 of the Act of 1999 of his proposal to make a deportation order. While a date does not appear on the notification, I assume it was dispatched on 3^rd March, 2011. In any event, a copy of it was sent to the plaintiff's solicitors on 3^rd March, 2011. That notice does not replicate the notice of 23^rd February, 2006 verbatim, but, in substance, it conveys the same message: the plaintiff was admitted to the State on 30^th September, 2003 and was subsequently granted permission to remain "until early 2006", since when the plaintiff has remained in the State without the permission of the Minister and is, therefore, unlawfully present in the State. Accordingly, the plaintiff is a person whose deportation would, in the opinion of the Minister, be conducive to the common good. On 23^rd March, 2011 the plaintiff made representations to the Minster to remain temporarily in the State pursuant to s. 3 of the Act of 1999.

8 5 2.4 While, as yet, the representations have not been adjudicated on by the Minister and a deportation order has not been made, the position adopted on behalf of the Minister has been that the existence of the constitutional challenge to s. 3 pending in these proceedings does not preclude the Minister from making a deportation order. In any event, it was submitted on behalf of the defendants that, if a deportation order is made, it would be open to the plaintiff to challenge its validity by way of judicial review.

9 2 3.1 On behalf of the plaintiff it was submitted that to establish an entitlement to an interlocutory injunction the plaintiff must meet the tests set out by the Supreme Court in Campus Oil v. Minister for Industry and Energy (No. 2) [1983] 1 I.R. 88, namely, that-

(a) there is a fair issue to be tried,

(b) the balance of convenience favours an injunction, and

10 (c) damages are not an adequate remedy.

11 3 3.2 Counsel for the defendants submitted that it has not been demonstrated that there is a fair issue to be tried on a number of grounds.

12 4 3.3 First, it was contended that the plaintiff has not identified, either in law or in fact, a constitutional or a convention right which would be infringed if the Minister made a deportation order against the plaintiff. As regards the plaintiff's reliance on the right to earn a livelihood, it was contended that the plaintiff is unlawfully in this jurisdiction and does not now have, and never has had, an entitlement to work. As regards reliance on the plaintiff's right to a good name, the Court's attention was drawn once again to the decision of the Supreme Court in F.P. v. Minister for Justice [2002] 1 I.R. 164 and, in particular, the comments of Hardiman J. at p. 172 et. seq. As I stated in the May judgment (para. 4.4), I consider that the plaintiff in these proceedings has exactly the same status as the applicants in the F.P. case, aside from any status he has by reason of his...