S and Another v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IECA 235
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 351 of 2017],Neutral Citation Number: [2017] IECA 235 Record No. 2017/351
• Date: 31 July 2017

[2017] IECA 235

THE COURT OF APPEAL

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 235

Record No. 2017/351

BETWEEN/

BSS (an infant acting by his father and next friend AS)

and

AS

APPLICANTS / APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Immigration and asylum – Deportation – Right to remain – Appellant seeking to restrain his deportation – Whether Court of Appeal had jurisdiction to entertain the appeal

Facts: The second applicant/appellant is an Indian national who arrived in Ireland in March 2016 and promptly claimed asylum. Without explanation, he did not attend an interview with the Refugee Applications Commissioner on 17th March 2016. The application was subsequently deemed to have been withdrawn. He was subsequently informed by letter dated 19th July 2016 that his entitlement to remain in the State had expired but that he could make an application for subsidiary protection. The Minister then sent a letter on 25th August 2016 indicating that he proposed to make a deportation order against him. A deportation order was ultimately made on 24th October 2016 and notified to the second applicant on 29th November 2016. Throughout the asylum process there had been no engagement at all by the second applicant with the authorities. It was only when the second applicant was arrested by the Gardaí at his home in Dublin in April 2017 that he sought, in effect, to contest his deportation from the State. He belatedly informed the authorities that he had been in a relationship with a Polish national and that their son, the first applicant/appellant, had been born on 30th September 2016. The second applicant asserted a derivative right to remain in the State based on recent case-law interpreting the effect of Article 20TFEU. In effect, the argument was that if the second applicant were to be deported, this might have the effect of depriving the first applicant of his right to live in the territory of the European Union. Judicial review proceedings were commenced shortly thereafter. The High Court (O'Regan J), on 17th July 2017, held that the proceedings amounted to a collateral attack on the validity of the deportation order, so that the provisions of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applied to the application for judicial review. As s. 5(2) of the 2000 Act provides that any such application must be made within 28 days of the making of the deportation order, O'Regan J held that the application was out of time and she refused to extend time for this purpose. The applicants appealed to the Court of Appeal against that decision. No application was made to O'Regan J for a certificate permitting an appeal to be taken to the Court of Appeal in respect of that decision for the purposes of s. 5(6)(a) of the 2000 Act.

Held by Hogan J that the absence of a certificate was of some importance because if s. 5 of the 2000 Act did apply to the proceedings, it follows that the Court had been improvidently seized of the appeal for want of jurisdiction. Hogan J held that the proceedings were governed by s. 5(1)(c) as they involved a challenge in substance to the validity of a deportation order by seeking an order restraining the enforcement of that order. Hogan J held that, absent the grant of a certificate by the High Court pursuant to s. 5(6), the Court has no jurisdiction to entertain the appeal.

Hogan J held that the appeal must be struck out for want of jurisdiction.

Appeal struck out for want of jurisdiction.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 31st day of July 2017

1 Under what (if any) circumstances can an applicant seek to restrain the enforcement of a deportation order otherwise than by means of an application for judicial review in accordance with the requirements of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as inserted by s. 34 of the Employment Permits (Amendment) Act 2014)('the 2000 Act')? This issue is of some importance so far as the appeal in this case is concerned, because if the present proceedings are in fact governed by s. 5 of the 2000 Act, then this Court only has jurisdiction to hear such an appeal if the appropriate certificate for this purpose was granted by the High Court and in respect of which no application was made to that Court.

2 This, accordingly, is the jurisdictional question presented on this appeal. But before the nature of this jurisdictional issue can be fully explained or understood, it is first necessary to describe the background to these proceedings.

The background to the present proceedings

3 The second applicant, Mr. AS, is an Indian national who arrived here in March 2016 and promptly claimed asylum. He was given a date for interview with the Refugee Applications Commissioner on 17th March 2016, but he did not attend for interview on that date. No explanation for non-attendance was given and the application was subsequently deemed to have been withdrawn. He was so notified by a registered letter sent by the Minister to the last known address of the applicant on 16th June 2016.

4 Mr. S. was subsequently informed by letter dated 19th July 2016 that his entitlement to remain in the State had expired but that he could make an application for subsidiary protection. There was no response to that letter and the Minister then sent a letter on 25th August 2016 indicating that he proposed to make a deportation order against him and inviting any representations for this purpose. A deportation order was ultimately made on 24th October 2016 and notified to the second applicant on 29th November 2016.

5 As it happens, Mr. S. did not leave the State by the date specified for his deportation, namely, 30th December 2016. Nor did he present to the Garda National Immigration Bureau on 18th November 2017 in order to make arrangements for his departure from the State, so that it may fairly be said that throughout the asylum process there had been no engagement at all by the second applicant with the authorities.

6 It was, however, only when the second applicant was arrested by the...