S.S. (Pakistan) v The Governor of the Midlands Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 04 December 2018
• Neutral Citation: [2018] IECA 384
• Date: 04 December 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 384

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN/

S.S. (PAKISTAN)

APPLICANT/APPELLANT

- AND -

THE GOVERNOR OF THE MIDLANDS PRISON

RESPONDENT / RESPONDENT

[2018] IECA 384

Kennedy J.

Edwards J.

McCarthy J.

Kennedy J.

Neutral Citation Number: [2018] IECA 384

[2018 No. 309]

THE COURT OF APPEAL

Unlawful detention – Deportation order – Residence card application – Appellant seeking an order directing his release pursuant to Article 40.4.2 of the Constitution – Whether his detention on foot of a deportation order was unlawful on the basis of application for a residence card

Facts: The appellant appealed to the Court of Appeal from an order of the High Court (Humphreys J) of the 17th July 2018, refusing an order directing his release pursuant to Article 40.4.2 of the Constitution. The appellant sought in the High Court an enquiry as to the legality of his detention under Article 40.4.2 of the Constitution and argued that his detention on foot of a deportation order was unlawful on the basis of application for a residence card pursuant to the European Union (Free Movement of Persons) Regulations 2015 (S.I. 548 of 2015). The appellant submitted that the trial judge erred in: (i) holding that as the appellant had not “established” that he was “actually” a qualifying family member he was not entitled to any rights pursuant to Regulation 7(1) and Regulation 7(6) of the 2015 Regulations or article 10 of Council Directive 2004/38/EC; (ii) holding that it was necessary to establish to the Minister for Justice’s satisfaction that one is “actually” a qualifying family member before one can enjoy rights pursuant to the 2015 Regulations or article 10 of the Directive; (iii) opining that “dependency is possibly different from being a spouse”; (iv) holding that the existence of an unchallenged deportation order is a complete answer to any Article 40.4 proceedings based on the deportation; and (v) concluding that, having been refused a residence card seven days after his arrest, the appellant was not within the scope of the Directive.

Held by Kennedy J that there was no error in the decision of the trial judge; he correctly found that the appellant had not demonstrated that he had an entitlement to the rights under Regulation 7(6) of the Regulations.

Kennedy J held that the appellant’s detention was lawful and that the trial judge was not in error in so concluding.

Appeal dismissed.

JUDGMENT of Ms. Justice Kennedy delivered on the 4th day of December, 2018

Introduction

1 This is an appeal from an order of the High Court (Humphreys J.) of the 17th July 2018, refusing an order directing the appellant's release pursuant to Article 40.4.2 of the Constitution. The appellant sought in the High Court an enquiry as to the legality of his detention under Article 40.4.2 of the Constitution and argued that his detention on foot of a deportation order was unlawful on the basis of application for a residence card pursuant to the European Union (Free Movement of Persons) Regulations 2015 ( S.I. 548 of 2015).

Background

2 The appellant, Mr Shahid, arrived in Ireland in June 2012 and submitted an asylum application on the 27th June 2013. On the 5th September, he was refused refugee status and a deportation order was made on the 2nd July 2015. This was notified to the GNIB directly in August 2015 and was served on the appellant on 9th January 2018. On 30th January 2018, the appellant applied for a residence card under the European Union (Free Movement of Persons) Regulations 2015 ( S.I. 548 of 2015) (‘The Regulations’), asserting that he is a qualifying family member, on the basis that he is the adult dependent child of the spouse of an EU citizen exercising her EU treaty rights in the State by virtue of the ‘marriage’ between his father and Ms NM, a Romanian national. On 20th June 2018, the appellant was arrested and detained on foot of the unchallenged deportation order. On 27th June 2018, the Minister refused the appellant's application for a residence card on the basis that he was not a qualifying family member as he was not dependent on the EU citizen. His father's residence card was also revoked on that day as his marriage to NM was considered to be a marriage of convenience.

3 The appellant, who was granted bail on July 2nd, 2018, contends that his arrest and detention on foot of the deportation order are unlawful due to his application for a residence card.

The Application for a Residence Card

4 The Court was provided with an agreed chronology of events from which the following can be gathered. The appellant applied for a residence card on the 30th January 2018 on the basis that he was a qualifying family member of a EU citizen, based upon the assertion that he was a long term dependent of his father since his student days in the UK, and the fact that his father was in turn the spouse of Ms NM who was an EU national who was lawfully resident in the State on foot of the exercise of her EU Treaty rights. On the same date, he submitted a request for confirmation that the deportation order would be suspended pending the determination of his application. On the 2nd February 2018, the Minister replied that this was not possible; the enforcement of the deportation order being an operational matter. On the 6th March 2018, an undertaking was again sought that he would not be deported pending a decision on his application, which was refused and again he requested an undertaking on the 22nd March, whereupon on the same date further information was sought and further information was provided by the appellant on the 30th March. On the 5th April, the Minister reconfirmed that no undertaking would be given. On the 9th April, further information was provided to the Minister. On the 25th April, the appellant requested he be furnished with a certificate of application pursuant to article 10 of Council Directive 2004/38/EC. of 29 April, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, O.J L158/77 19. 4.2004 (which, if he was entitled to so apply, would in turn have entitled him to have his passport stamped by an immigration officer with what is known as a ‘Stamp 4’ stamp, indicating that he had permission to stay in Ireland for a specified period, subject to conditions) and on the 26th April, the Minister stated that a temporary Stamp 4 would not issue at that time. The appellant's solicitor sought reasons for this and on the 20th June 2018, the appellant was arrested on foot of the deportation order. Court proceedings then ensued. As stated in the introduction to this judgment, these took the form of an application for an enquiry under Article 40.4.2 of the Constitution into the legality of his detention.

Decision of the High Court

5 In the High Court, Humphreys J. found that the appellant's detention was lawful. In doing so, he held, inter alia, that the appellant had not established that he was a qualifying family member for the purposes of the Regulations, and stated:

‘Regulation 7(1) establishes that an application can only be made by a ‘family member’. That means either a permitted or a qualifying family member. It is agreed that the applicant is not a permitted family member. Thus, he can only be a qualifying family member, but to be a qualifying family member under reg. 3(5) in pertinent part you have to be a direct descendant who is ‘a dependent of the Union citizen, or of his or her spouse or civil partner’. This reflects directive 2004/58/EC art. 2.2(c). This applicant has not established to the Minister's satisfaction that he is a dependent. Therefore, he is not to be treated as a qualifying family member and is therefore not entitled to rights under reg. 7( 1) or (6) or the corresponding provisions of the directive, in particular art. 2. 2 or 10. Merely asserting dependency does not create rights under art. 7(6). As it was put in C.A. v. Governor of Cloverhill Prison [2017] IECA 46 (Unreported, Court of Appeal, 27th February 2017) per Hogan J., one has to be an ‘actual’ qualifying or permitted family member to have rights under art. 7, not simply an applicant. In that sense, I should clarify that the words ‘an applicant under paragraph (1)’ in reg. 7(6) mean a person who is entitled to apply under that paragraph, that is a dependent ‘family member’, not simply any random person who happens to wander along and make an application, irrespective of whether they are a family member in a dependency situation or not.’

Grounds of Appeal

6 The core issue in this case relates to the Regulations and the question of whether the arrest and detention of the appellant on foot of the unchallenged deportation order is lawful, having regard to the application for a residence card made after the deportation order and before the appellant was arrested on foot of the deportation order.

7 There are 21 grounds of appeal set out in the appellant's notice of appeal. Whilst the Court has had regard to all grounds of appeal, the pertinent grounds appear to be as follows:

(i) the trial judge erred in holding that, as the appellant had not ‘established’ that he is ‘actually’ a qualifying family member he is not entitled to any rights pursuant to Regulation 7(1) and Regulation 7(6) of the 2015 Regulations or article 10 of the Directive;

(ii) the trial judge erred in holding that it is necessary to establish to the Minister for Justice's satisfaction that one is ‘actually’ a qualifying family member before one can enjoy rights pursuant to the 2015 Regulations or article 10 of the Directive;

(iii) in opining that ‘dependency is possibly different from being a spouse’, then the trial judge fell into error;

(iv) the trial judge erred in holding that the existence of an unchallenged deportation order is ‘a complete answer to any Article 40.4 proceedings...