P.N.S. (Cameroon) v The Minister for Justice and Equality ; K.J.M. (D.R Congo) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 16 July 2018
• Neutral Citation: [2018] IEHC 504
• Date: 16 July 2018
• Court: High Court
• Docket Number: [2017 No. 767 J.R.] [2018 No. 469 J.R.]

[2018] IEHC 504

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 767 J.R.]

[2018 No. 469 J.R.]

BETWEEN

P.N.S. (CAMEROON)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

K.J.M. (D.R. CONGO)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Immigration and asylum – Right to remain in the State – Application for international protection – Applicants seeking a right to remain in the State – Whether the right claimed exists

Facts: The applicants in both cases asserted a right to remain in the State pending an appeal against a rejection of a re-application for international protection and pending a formal refusal of the re-application by the first respondent, the Minister for Justice and Equality. Between them, the applicants brought six High Court actions. The primary question addressed by the High Court in these proceedings was whether the right claimed in fact exists.

Held by Humphreys J that the applicants had no right to remain under EU or Irish law at this stage of the process. Insofar as the applicants had either an appeal pending to the International Protection Appeals Tribunal against the International Protection Office recommendation or a judicial review pending in relation to the rejection of such an appeal, Humphreys J held that an applicant does not have a right to remain for the appellate or subsequent stages of the re-application procedure. Insofar as applications to revoke the deportation orders were pending, Humphreys J held that this did not give rise to an entitlement not to be removed. Humphreys J held that the lawful rejection of the re-applications at first instance indicated that, in the absence of anything solid to the contrary, there was no real risk such as to engage the law in relation to refoulement. Humphreys J held that no legal basis for an entitlement to an injunction emerged from such an analysis.

Humphreys J held that the proceedings would be dismissed and that the injunction retraining deportation would be discharged.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 16th day of July, 2018

1 The applicants in both of these cases assert a right to remain in the State pending an appeal against a rejection of a re-application for international protection and pending a formal refusal of the re-application by the Minister. Between them, the applicants have brought six High Court actions to date. This is the second such action by Mr. P.N.S. and the fourth by Mr. K.J.M. The primary question to be addressed in the present proceedings is whether the right claimed in fact exists.

Facts in P.N.S.

2 The applicant was born in Cameroon in 1974. In 2005, he became the father of a child with his partner at the time, Ms. V.N. In January, 2006, he applied for asylum. In 2008, he started a relationship with a Chadian national, Ms. C.S., who is now a lawful resident. His asylum application was refused in November, 2009. He then applied for subsidiary protection, which was refused on 17th May, 2010. A deportation order was made on 8th June, 2010.

3 He then evaded the GNIB for an approximately seven-year period. In 2011, he married a Ms. H.K.M., but later had an affair with Ms. C.S. and on 29th April, 2013, became the father of an Irish citizen child with the latter.

4 On 8th September, 2016, he applied for permission to reside in the State based on the parentage of the Irish citizen child. On 19th August, 2017, he applied for permission to re-enter the international protection system pursuant to s. 22 of the International Protection Act 2015.

5 In October, 2017, he began reporting to GNIB once again and the proceedings were commenced.

6 On 24th November, 2017, the International Protection Office (IPO) refused the s. 22 application.

7 I have heard helpful submissions from Mr. Paul O'Shea B.L. for the applicant and from Mr. Robert Barron S.C. and Ms. Emily Farrell B.L., who also addressed the court, for the respondents. At the original hearing I gave an ex tempore judgment granting limited relief to the applicant but shortly thereafter, and prior to the order being taken up, my attention was drawn to a provision of the procedures directive 2005/85/EC which had not been referred to by counsel for the applicant and which threw light on the issues involved. I therefore invited counsel on both sides to have the matter re-entered and re-argued, which they agreed to do. In Lavery v. D.P.P. (No. 3) [2018] IEHC 185 [2018] 3 JIC 1310 (Unreported, High Court, 13th March, 2018) at para. 9, I discussed the various situations in which a court can revisit a decision, and had there not been consent to doing so I would have found that a number of those situations apply here. Admittedly I now come to somewhat different conclusions but that possibility is inherent in the process of re-entry and re-argument, and arises primarily because I am factoring in hugely relevant provisions of the procedures directive that through oversight were unfortunately not drawn to my attention by the applicant at the end of the initial hearing.

8 Subsequent to the original hearing, the applicant received a negative decision on the s. 22 appeal to the International Protection Appeals Tribunal (IPAT) dated 23rd April, 2018, and has launched a further set of judicial review proceedings in relation to that decision [ P.N.S. v. Minister for Justice and Equality, 2018 No. 413 J.R.]. That second action is currently listed for mention on 1st October, 2018. That judicial review relates to the appeal stage and does not seem to involve any right to remain in the State separate from the point being made in the present proceedings to the effect that the appeal should be viewed as part of the first instance procedure. The Minister has yet to make a formal decision on foot of the IPO recommendation, as affirmed by the IPAT.

Facts in K.J.M.

9 The applicant is a national of the DRC, born in 1972. On 24th January, 2005, he applied for asylum in the Netherlands. He made a second asylum application there on 10th February, 2005. These were rejected. He was the subject of a decision by the Dutch authorities to expel him to Cape Town on 27th April, 2005. He resisted removal, resulting in a delay in his being escorted to South Africa on 17th May, 2005.

10 On 31st May, 2011, he applied for asylum in Ireland. He falsely stated that he had previously been removed to the Congo, whereas in fact it was to South Africa. The State requested that the Dutch authorities take the applicant back on 9th June, 2011. This was refused. The applicant's Irish asylum claim was then processed here and refused by the Refugee Applications Commissioner. The applicant was so informed on 12th September, 2011. An appeal to the tribunal was lodged and rejected. The applicant was so informed on 30th December, 2011. The applicant then sought judicial review of the refusal on 23rd January, 2012 [ K.J.M. v. Minister for Justice and Equality 2012 No. 45 JR]. That was struck out with no order on 15th December, 2014.

11 In the meantime, on 31st January, 2013, the applicant was refused entry to the Netherlands at Schiphol international airport. He then once again applied for asylum there. In February, 2013, a take-back request was received from the Netherlands under art. 16(1)(c) of the Dublin II regulation. This was agreed to and the applicant was returned to Ireland.

12 On 5th May, 2015, the applicant applied for subsidiary protection here and that was refused on 19th September, 2016. An appeal was brought to the tribunal but was withdrawn on 17th October, 2016. In the meantime his partner, a Ms. C.M., and their two children, were granted stamp 4 residency as of 25th August, 2016.

13 A proposal to deport was then made. On 1st December, 2016, submissions against deportation were made. A deportation order was made on 13th January, 2017, and was not challenged.

14 On 23rd August, 2017, the applicant applied to revoke that order under s. 3(11) of the Immigration Act 1999, an application that remains outstanding. On 10th October, 2017, he applied to be readmitted to the protection process. That was rejected on 26th October, 2017, by the IPO. That was appealed by the applicant to the IPAT on 3rd November, 2017. That appeal remains pending before the IPAT.

15 The applicant had evaded following the deportation order but then presented again for a period. He then evaded again following a presentation on 31st May, 2018. He was arrested and detained in Limerick Prison.

16 On 1st June, 2018, he brought an Article 40 application [ K.J.M. v. Governor of Limerick Prison 2018 No. 702 S.S.]. The applicant was released on bail on 1st June, 2018 and the Article 40 was compromised on technical grounds on 6th June, 2018 due to a possible defect in the warrant.

17 The applicant originally brought a plenary action [ K.J.M. v. Minister for Justice and Equality 2018 No. 5283 P] raising the present complaints but when the procedural exclusivity of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was pointed out to him, that action was struck out by consent and the present judicial review proceedings instituted instead.

18 I granted an injunction restraining the deportation of the applicant and continued that until the time of the present judgment.

19 I have heard helpful submissions from Ms. Rosario Boyle S.C. (with Mr. Michael McNamara B.L.) for the applicant and from Mr. Robert Barron S.C. (with Mr. John P. Gallagher B.L.) for the respondents.

Relief sought in P.N.S.

20 The primary substantive reliefs are declarations that deportation prior to either:

(a) a decision on the application to re-enter the asylum process, or

(b) the application for residency based on parentage of the minor citizen child, would be either unlawful or disproportionate respectively.

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