Raspopov v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C.SMYTH
• Judgment Date: 14 May 2002
• Neutral Citation: 2002 WJSC-HC 6050
• Date: 14 May 2002
• Court: High Court

2002 WJSC-HC 6050

THE HIGH COURT

RECORD NO. 2002/223 JR

Record No. 2002/222 JR

RASPOPOV & SINGLETON v. MINISTER FOR JUSTICE

DUBLIN

JUDICIAL REVIEW

Between

VLADIMIR RASPOPOV

and

Applicant

LORRAINE SINGLETON

Applicant

-and-

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

Respondent

Citations:

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

FAKIH V MIN FOR JUSTICE 1993 2 IR 406

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 ART 8

MAHMOOD, R V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 UKHRR 300

OSEKU V IRELAND 1986 IR 73

POK SUN SHUN 1986 ILRM 593

IMMIGRATION ACT 1999 S3(11)

Synopsis:

IMMIGRATION

Judicial review

Whether leave to seek judicial review should be granted - Immigration Act, 1999 (2002/222JR & 2000/223JR - Smyth J - 14/5/2002)

Raspopov v Minister for Justice, Equality and Law Reform

Facts: The applicant claimed that the respondent did not make any proper or considered response to representations which he claimed were made on his behalf under section 3(6) of the Refugee Act, 1999. The respondent could find no record of having received such representations.

Held by Smyth J in granting leave to seek judicial review that the applicant was entitled to expect a decision on a proper consideration of matters under section 3(11) of the Act of 1999 and where there was a degree of confusion as to the consideration of representations under section 3(6) leave will be granted. Obiter dictum: that as married persons non-nationals are entitled to claim to rely on the family rights enshrined in the Constitution. The mere fact of marrying an Irish citizen does not give rise to any specific form of citizenship rights to a non-national. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8 of the European Convention on Human Rights.

1 MR. JUSTICE T.C.SMYTHON TUESDAY, 14TH MAY 2002

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action

APPEARANCES

FOR THE APPLICANTS:	MR. HORGAN SC
FOR THE RESPONDENT:	MR. McCARTHY SC
Instructed by:	CHIEF STATE SOLICITORS OFFICE
	OSMOND HOUSE
	LITTLE SHIP STREET
	DUBLIN 8

MR. JUSTICE SMYTH: The Applicant, Vladimir Raspopov, a Moldavian

3 national, is a person who was refused refugee status but who, before having received notice of the making of a Deportation Order married Lorraine Singleton, an Irish citizen. The Applicants seek a range of reliefs from injunctive to certiorari and a declaration that they are entitled to remain indefinitely in the territory of the State and/or that he has a valid, subsisting, enforceable, unconditional and/or unlimited right to reside in the State.

4 Mr. Raspopov is an ethnic Russian who was born in Odessa on 7th August 1972. In the year 2000 he travelled across Europe and arrived in the State on 26th August 2000. His application for asylum and a declaration for refugee status was refused by the Refugee Applications Commissioner. He received notification of her decision by letter dated 12th December 2000. The decision of the Commissioner was appealed unsuccessfully and he received notification of the appeal decision by letter dated 27th April 2001. The text of this letter is of importance because it sets out in unequivocal terms to the Applicant that his temporary entitlement toremainin the State had expired and that the Respondent proposed making a Deportation Order.

5 The letter went on to indicate what alternatives were open to theApplicant.

6 In the grounding affidavit in these proceedings,Mr. Raspopov avers that he instructed the Refugee Legal Services who then acted for him to make representations on his behalf under the provisions of S.3(6) of the Immigration Act 1999for leave to remain in the State on humanitarian grounds. The affidavit further avers that "the Refugee Legal Services duly made such representations but the Respondent did not make any proper or considered response to same". In the course of an adjournment of the hearing, the Court was informed that the Respondent could find no record of having received representations. An unexplained letter stated to be dated 06/04/2001 from Messrs. Moynihan Mulvihill & Co. Solicitors addressed to the Refugee Legal Service states "please find enclosed file as the above appeal was successful. The above client wishes to appeal it on humanitarian grounds".

7 It would appear that at some time in the year 2000 the Applicants met and formed a relationship. It is not clear as to exactly how much Ms. Singleton knew of Mr. Raspopov's refugee/asylum application. She avers in her affidavit sworn on 25th April 2002that:

"He came to Ireland as an asylum seeker and, in particular, sought refugee status. He was refused the same both at first instance and also on appeal and was also refused leave to remain in the State on humanitarian grounds following the refusal of the saidappeal."

8 If this is true and the deponent avers that she makes the affidavit from facts within her own knowledge save where otherwise appears, then if there can be no mistake as to the use of the terms, both Applicants were aware of the full position in early 2002. However, she also avers, as does Mr. Raspopov, that for almost a year from 27th April 2001 Mr. Raspopov heard nothing from the Respondent. At some unspecified date, presumably three months before 4th April 2000, the Applicants decided to marry and did get married on 4th April 2002 and both left their former places of residence and went to live at 48A Spring Lane, Blackpool, Co.Cork.

9 The next communication from the Respondent received by Mr. Raspopov was a letter dated 12th April 2002 (copies of which were sent to the Garda National Immigration Bureau and Moynihan Mulvihill & Co. Solicitors) enclosing a Deportation Order dated 14th March 2002. This letter, the Applicant avers, he received on 15th April 2002.

10 The Applicant avers that:

"Owing to the very long delay between communications, I had come to expect that no further steps would be taken by the Respondent in respect of my deportation."

11 Ms. Singleton avers that:

"Both Mr. Raspopov and I have been ordinarily and continually resident in the territory of the State for at least a year and a half. We both wish to reside permanently here together. Given the said lapse of time between communications by the Respondent, I had come to expect that Mr. Raspopov would be allowed to remain in the State."

12 The history of the case continues with a letter of 17th April 2002 from Mr. Raspopov's solicitor to the Immigration Division of the Department of Justice in which application is made for residency on the grounds of being married to an Irish citizen. The response to this application is dated 8th May 2002 and is in the following terms:

"Dear Mr. Raspopov,

I refer to your recent application for residency in the State on the basis of your marriage to an Irish citizen.

The Minister is of the view that your marriage to Ms. Lorraine Singleton does not warrant revocation of the Deportation Order in this case. In that context, he is satisfied that the relatively short duration of your marriage is not such as to lead him to conclude that you have enjoyed a family life in the State for...