P.F. v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 28 May 2019 |
| Neutral Citation | [2019] IEHC 369 |
| Court | High Court |
| Docket Number | [2016 No. 810 J.R.] |
| Date | 28 May 2019 |
[2019] IEHC 369
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2016 No. 810 J.R.]
Immigration – Permission to reside in the State – Judicial review – Applicant seeking judicial review of a decision of the respondent – Whether the respondent erred in law in in refusing to consider the applicant’s application for permission to reside in the State
Facts: The respondent, the Minister for Justice and Equality, on 28 September 2016, refused the non-national applicant’s request, made by letter dated 11 November 2015, for permission to reside in the State under s. 4 of the Immigration Act 2004. The applicant applied to the High Court seeking judicial review of the Minister’s decision. The applicant challenged the decision on the following grounds: ‘a) The [Minister] has erred in law in [the decision] in refusing to consider the applicant’s application for permission to be in the State under section 4 of the [Act of 2004]. The applicant will rely on the following particulars without prejudice to the general applicability of this ground: i) The [Minister] did not fulfil her obligation to exercise the decision making power conferred by section 4 of the Immigration Act 2004 by failing to consider the substantive application for residence submitted by the applicant. ii) The [Minister] had a power and/or duty to consider and if necessary weigh the fundamental family rights of the applicant and his Irish family herein and unlawfully failed to exercise that statutory power/duty. iii) The proposal of the [Minister] is to the effect that a person who has an extant application for international protection is precluded from making an application for residency. This proposition is an error of law. b) In [the decision], the Minister makes a finding that “…at the time of his application, your client did not have immigration permission to be in the State. Because [the applicant] did not have permission to be in the State when the above-mentioned application was received, the question of amending or extending a permission does not arise.” This finding is an error of fact and law in circumstances in which the applicant held a “residence certificate” within the meaning of the Immigration Act 2004 pursuant to [Reg. 4(6) of the European Union (Subsidiary Protection) Regulations 2013] by reason of his application for subsidiary protection. c) Insofar as the decision of the [Minister] has the necessary consequence that a consideration of constitutional and [European Convention on Human Rights (ECHR)] family rights will not be considered outside of the deportation process, the decision is a disproportionate infringement of rights in circumstances where the making of representations under [s. 3 of the Immigration Act 1999] would, if unsuccessful, result in the applicant having a life-long deportation order made in respect of him, and preclude him from visiting with his Irish family in the State.’
Held by Keane J that the applicant did not have any extant form of residence permission to be in the State, as opposed to a legislative entitlement to remain in the State pending the determination of his subsidiary protection claim, under Reg. 4(1) of the 2013 Protection Regulations. Keane J held that, even if that entitlement to remain could be properly characterised as a form of residence permission, it could not be considered one granted under s. 4 of the 2004 Act. Thus, Keane J found that the applicant had no entitlement to rely on s. 4(7) of the 2004 Act when his solicitors wrote to the INIS on 11 November 2015, seeking a residence permission under s. 4 of the 2004 Act on the basis of his existing entitlement to remain in the State under Reg. 4(1) of the 2013 Protection Regulations. Keane J held that the applicant’s argument, that the failure to permit him to invoke any such rights as he may be able to assert prior to his entry into the deportation process was a disproportionate interference with those rights because of the ‘lifelong’ nature of a deportation order, wrongly disregarded both the statutory entitlement under s. 3(11) of the 1999 Act to apply for the revocation of a deportation order and the decision of the Supreme Court in Sivsivadze v Minister for Justice [2016] 2 IR 403, which addresses and rejects precisely that argument, i.e. that the indefinite period of exclusion from the State imposed by a deportation order made under s. 3(1) of the 1999 Act is incompatible in principle with either the Constitution or the ECHR.
Keane J held that the application would be refused.
Application refused.
This is the judicial review of a decision, made by the Minister for Justice and Equality (“the Minister”) on 28 September 2016, to refuse the non-national applicant's request, made by letter dated 11 November 2015, for permission to reside in the State under s. 4 of the Immigration Act 2004, as amended (“the Act of 2004”).
The application for judicial review was heard together with the application for leave to seek judicial review in what has come to be known as a telescoped hearing, presumably by analogy with the way in which the different concentric tubular parts of an old-fashioned nautical telescope can be collapsed together into a single section of tube. Although I have not been shown a copy, I understand that Mac Eochaidh J made an order directing such a hearing on 21st November 2016.
Under s. 5 (1) (e) of the Illegal Immigrants (Trafficking) Act 2000 (“the Act of 2000”), as inserted by s. 34(1) of Employment Permits (Amendment) Act 2014 (an open invitation to a charge of legislative obscurantism), a person can only challenge a refusal of residence permission under s. 4 of the Act of 2004 by application for judicial review and, under s. 5 (2) of the Act of 2000, can only obtain leave to do so by satisfying the court that there are substantial grounds for contending that the refusal ought to be quashed.
The applicant's statement of grounds, dated 24 October 2016, is grounded on an affidavit of the applicant, sworn the following day. The respondent filed a statement of opposition on 9 January 2016, grounded on an affidavit of Alan King, an assistant principal officer in the Minister's department, sworn on 5 January 2017. A solicitor in the Chief State Solicitor's Office (“CSSO”) swore a further affidavit on behalf of the Minster on 25 May 2017, exhibiting certain inter partes correspondence and a policy document.
The applicant is a national of Pakistan, born in 1981, who entered the State lawfully in 2006 with the benefit of a permission to reside and work here. That permission was renewed on several occasions until the last such permission, granted on 18 May 2011, expired on 18 September 2011. Despite the absence of any permission to remain from that date onwards, the applicant did not leave the State.
On 9 February 2012, in accordance with s. 3(3)(a) of the Immigration Act 1999, as amended (“the Act of 1999”), the Minister issued a notice informing the applicant of the proposal to make a deportation order against him on the ground that it would be conducive to the common good. The applicant made representations in response to that proposal on 13 and 28 June of that year. Having considered those representations, the Minister nonetheless made a deportation order against the applicant on 19 February 2013, pursuant to s. 3(1) of the Act of 1999.
On 19 April 2013, the applicant was arrested and detained on foot of that order for the purpose of deporting him. While in detention, the applicant applied for a declaration of entitlement to refugee status on 23 April 2013. By reference to that event, the Minister revoked the deportation order against the applicant on 13 May 2013.
The Refugee Applications Commissioner (“the Commissioner”) recommended that the applicant should be refused a declaration of refugee status on 16 July 2013. The applicant appealed to the Refugee Appeals Tribunal (“the tribunal”) on 21 August and the tribunal affirmed the decision of the Commissioner on 2 October 2014. On 22 October, the Minister issued a decision refusing to grant the applicant a declaration of refugee status.
The applicant applied for subsidiary protection on 5 November 2014. The Commissioner recommended, on 4 September 2015, that the applicant should not be granted a subsidiary protection entitlement declaration. The applicant appealed to the tribunal against that recommendation on 25 November 2015. That appeal has not yet been determined.
Before lodging it, the applicant's solicitors wrote to the Irish Naturalisation and Immigration Service (“INIS”) on 11 November 2015. The subject heading of that letter sets out the name and address of the applicant as their client, followed by the words: “Application for Residence Pursuant to Section 4 of the Immigration Act 2004.”
After a brief introductory paragraph, it then states:
“We are writing to seek a residence permission in the State for our client pursuant to section 4 of the Immigration Act 2004, without prejudice to any existing or future applications of our client in respect of his immigration status in the State.”
The following section of the letter comprises a submission that, as an adult dependent member of the household of his Irish citizen brother, the applicant should be considered eligible for permission to reside in the State under the INIS Policy Document on Non-EEA Family Reunification (December 2013) (“the policy document”).
The letter continues with a section headed “Procedural Position & Relevant Law”. It states, in material part:
“Our client has a permission to reside in the State pursuant to Regulation 4 of [the European Union (Subsidiary Protection)...
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