P.S.M. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 474
• Court: High Court
• Docket Number: [2015 No. 492 JR]
• Date: 29 July 2016

[2016] IEHC 474

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 492 JR]

BETWEEN

P.S.M.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum, Immigration & Nationality – Leave to remain in State – Criminal offence – Conviction – Imprisonment – Refusal of certificate of naturalisation – Deportation order – Judicial review.

Facts: Pending naturalisation application, the applicant sought to quash the deportation order. The applicant claimed that the respondent had erred in the process of assessment of proportionality. The applicant argued that the decision of the respondent would be manifestly irrational or otherwise unlawful so as to permit quashing of the deportation order.

Mr. Justice Richard Humphreys held that the application to quash the deportation order would be dismissed. The Court further held that the respondent be released from the undertaking not to deport the applicant with effect from the oral pronouncement of the judgment. The Court ordered that the matter be adjourned to enable any application for leave to appeal. The Court further stated that the material submitted by the applicant did not clearly set out why the family could not move to the original State as a unit. The Court further remarked that a serious offence requires serious consequences.

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

1 The applicant and his wife, who are both South African, married in that country in 1998. They came to Ireland in 1999.

2 The applicant's wife has a daughter from a previous relationship, born in 1991.

3 The applicant and his wife had two children in the State, born in 2000 and 2005. Both of these children are Irish citizens, as is the applicant's step-daughter.

4 The applicant applied for and was refused refugee status. He appealed to the Refugee Appeals Tribunal, which rejected the appeal in August 2000 as being manifestly unfounded.

5 In September, 2001 the applicant was given leave to remain in the State on the basis of being the father of an Irish-born citizen child.

6 As a result of an incident that took place in 2006, the applicant was charged with an offence in relation to the possession and sale of cannabis for sale and supply.

7 He was refused a certificate of naturalisation in 2007 on the grounds of not having the required period of residence.

8 A second application for naturalisation was refused in 2010, without any reasons being given.

9 In March, 2010 the applicant was convicted following a trial by jury and was sentenced to seven years imprisonment.

10 In 2012 he made an application for a certificate that a miscarriage of justice had occurred, although at no stage had he appealed the original conviction to the Court of Criminal Appeal.

11 On 1st February, 2013 the applicant's permission to be in the State expired (while he was in custody) and he has been illegally in the State ever since.

12 The applicant was permitted to participate in a community release scheme in 2013.

13 On 29th July, 2014 the Minister issued a proposal to deport the applicant.

14 The applicant made representations as to why he should not be deported dated 31st July, 2014 and 10th April, 2015.

15 On 1st December, 2014 the applicant was granted enhanced remission by the Irish Prison Service with the approval of the Minister, in respect of the balance of his sentence.

16 An examination of file was prepared dated 26th June, 2015 recommending deportation. A deportation order was duly made on 5th August, 2015.

17 The applicant's wife remains in the State and has permission to do so. A naturalisation application made by her is pending.

18 The present application for relief by way of judicial review quashing the deportation order was instituted on 27th August, 2015, when leave was granted by Faherty J. to bring the proceedings.

Procedural questions

19 In the statement of opposition, Mr. Cormac Ó Dúlacháin S.C. (with Mr. Dermot Manning B.L.) for the respondent pleaded that the application was out of time by reference to a fourteen day time limit. The time limit had been changed to 28 days prior to the initiation of the proceedings. The application is not out of time.

20 At the hearing, Mr. Ó Dúlacháin also confirmed that an undertaking that was given not to deport the applicant would be continued up to the determination of the judicial review proceedings by the High Court.

21 An issue also arose to the fact that the applicant's wife, children and step-daughter are not parties to the proceedings. In those circumstances, Mr. Ó Dúlacháin submits that the applicant can only assert his own right to the society of other family members, but not the rights of those family members as such. Though that submission appears to me to be well-founded, I am not sure that in the circumstances of this case anything decisive turns on the distinction.

22 Finally a further issue arose during the hearing as to whether the family was still intact, and if so why two different addresses were being used within a relatively short time by the two different spouses. I gave the applicant liberty to file a further affidavit clarifying this matter, at which point it emerged for the first time, and contrary to the position initially put forward on behalf of the applicant, that the spouses were in fact living at separate addresses.

Is the decision disproportionate or does it fail to correctly assess proportionality?

23 Mr. Colm O'Dwyer S.C. (with Anthony Hanrahan B.L.) in a very able submission contends that the proportionality analysis in the Minister's decision is defective, both as to process and as to outcome.

24 It is clear that persons who are not settled migrants, and whose status in the country is precarious or unlawful, can assert minimal, if any, family rights as regards the period of such precarious residence (whether under art. 8 of the ECHR or Article 41 of the Constitution): see P.O. v. Minister for Justice, Equality and Law Reform [2015] IESC 64 (Unreported, Supreme Court, 16th July, 2015) and C.I. v. Minister for Justice, Equality and Law Reform [2015] IECA 192 (Unreported, Court of Appeal, 12th July, 2015) per Finlay Geoghegan J. para. 41 and Costello-Roberts v. United Kingdom (1993) 19 E.H.R.R. 112 (Application no. 13134/87, 25th March, 1993), except perhaps in exceptional circumstances.

25 On the other hand, persons who are settled migrants may in certain circumstances have private or family rights which may be engaged by a deportation decision. In that regard Mr. O'Dwyer relies heavily on A.A. v. United Kingdom [2011] ECHR 1345 (Application no. 8000/08, European Court of Human Rights, 20th September, 2011) where it was held that the deportation of the applicant offender would contravene art. 8. However, that was in the context of special circumstances, including significant delay on the part of the United Kingdom authorites, who failed to deport him for a 3 ½ year period (see para. 66).

26 Looking at an assessment of factors such as those set out in Üner v. The Netherlands (2007) 45 4 E.H.R.R. 14 (Application no. 46410/99, 18th October, 2006) at paras. 57 and 58, it is true that a number of the factors referred to by the European Court such as the length of the applicant's stay in the country from which he or she is to be expelled, militate against expulsion. However, other factors are considerably less favourable to the applicant, such as the nature and seriousness of the offence committed by him, and indeed the time which has elapsed since the offence was committed. By contrast with A.A., there is no lengthy period of indolence on the part of the State in this case. The State is acting promptly during the applicant's incarceration, and is not standing idly by while he continues to build up family and private life. Furthermore, the ages of the children are another factor to be considered. In this case, two of the three children in the family as a whole are beyond the stage of being, in principle, dependent on the applicant.

27 As regards the effect of the deportation on the family, the material submitted by the applicant to the Minister does not clearly set out why the family could not move to South Africa as a unit. The letters from the applicant's wife and children are surprisingly skeletal and lacking in detail given what are said to be the serious consequences for the family of the deportation.

28 It has been suggested in case law that state action which has the effect of separating spouses must be backed by a ' compelling justification' (see X.A. v Minister for Justice, Equality and Law Reform [2011] IEHC 397 (Unreported, High Court, Hogan J., 25th October 2011), as cited in Ford v. Minister for Justice and Equality [2015] IEHC 720 (Unreported, High Court, Eagar J., 19th November 2015) and also referred to in P.S. and B.E. v. The Minister for Justice, Equality and Law Reform [2011] IEHC 92 (Unreported, High Court, Hogan J., 23rd March, 2011) followed by Mac Eochaidh J. in Gorry v. Minister for Justice and Equality [2014] 2 I.L.R.M. 302 at para.40. In this context however, much depends on the circumstances. It is not appropriate or possible to generalise by laying down a broad proposition that ' compelling justification' is always necessary. For example, in the case of a person who is already living under the shadow of deportation prior to marriage, the mere fact of getting married could not rationally have the effect of automatically conferring on such a person an immunity from deportation absent compelling justification. No immigration control system could survive such a doctrine. Nor could compelling justification seriously be required to separate spouses who married for the primary purpose of conferring an immigration advantage on one of them.

29 Assuming however in ease of the applicant that the deportation of...