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

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 July 2018
• Neutral Citation: [2018] IEHC 442
• Court: High Court
• Docket Number: [2018 No. 787 S.S.]
• Date: 17 July 2018

[2018] IEHC 442

THE HIGH COURT

Humphreys J.

[2018 No. 787 S.S.]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

S.S. (PAKISTAN)

APPLICANT

AND

THE GOVERNOR OF THE MIDLANDS PRISON

RESPONDENT

Deportation – Unlawful detention – Qualifying family member – Applicant seeking his release under Article 40.4.2° of the Constitution – Whether applicant had established that he was a qualifying family member

Facts: The applicant, a citizen of Pakistan, was subject to an unchallenged deportation order. His date to leave the State, 9th February, 2018, was specified in the order indirectly by reference to the accompanying notice. He failed to leave the State by the time so specified and he was therefore liable to arrest and detention under s. 5 of the Immigration Act 1999. His detention was therefore prima facie lawful. He applied to the High Court for his release under Article 40.4.2° of the Constitution. He raised a number of grounds as to why that certificate demonstrating prima facie lawfulness could be shown not to be an answer to the application.

Held by Humphreys J that the applicant had not established that he was actually a qualifying family member so he had not established an entitlement to rights under regs. 7(1) or (6) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). Humphreys J held that the applicant's claim that he should be proceeded with by a removal order rather than deportation order was unfounded as he had not established that he was entitled to any rights under Directive 2004/58/EC. Humphreys J noted that the power to make a removal order under reg. 20 of the 2015 Regulations was limited to a person to whom reg. 3(1) of the 2015 regulations applies; as the applicant was not such a person, he was not subject to the removal order procedure.

Humphreys J held that the applicant was in lawful detention and so he dismissed the application.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of July, 2018

1 The applicant is a citizen of Pakistan. His father claims to have been present in the State unlawfully between 2005 and 2009, although this is not recorded on the Minister's records. All-too-conveniently, during this period of unrecorded alleged presence, he claims to have met a Romanian citizen here in 2007. The applicant's father had a U.K. visa issued in Abu Dhabi between 1st August, 2013 and 1st February, 2014. The applicant also had a U.K. visa valid between 1st January, 2012 and 24th March, 2013.

2 The applicant arrived in the State and applied for asylum on 27th June, 2013. On 22nd August, 2013 he was informed that the U.K. was the State responsible for his application. On 6th September, 2013 he was informed of the requirement to present to GNIB to permit his transfer to the U.K. He did not so present and was classified as an evader. He claims he did not get this notice but that was in circumstances where he wrongfully failed to give notice of his change of address. In such circumstances, service on his last notified address is good and valid in law.

3 On 13th March, 2014 the applicant's father came, or returned, depending on whether one wishes to accept his account, to Ireland. On 15th March, 2014 the father applied for asylum. On 1st August, 2014, that is slightly over four months after re-entering or entering the State at all, the father gave notice of intention to marry the alleged EU national partner. The applicant's father's asylum claim was deemed withdrawn on 19th August, 2014. On 10th November, 2014 the father 'married' an EU national, a Ms. N.M. At the time he was illegally present here and married only some eight months after re-entering the State. She was born in 1972 so was 41 at the time, he was born in 1961 and was 53. No one identifiably associated with the wife was listed as a witness on the marriage certificate.

4 The applicant's claim for asylum was deemed withdrawn on 25th February, 2015 as he failed to attend the Refugee Application Commissioner for interview. On 5th March, 2015, the applicant was formally refused refugee status. On 1st July, 2015, the father was granted a residence card based on his 'marriage' to a Romanian national.

5 A deportation order was made against the applicant on 2nd July, 2015. That was notified on 5th August, 2015 to the GNIB rather than directly to the applicant because the latter had unlawfully left Balseskin reception centre without a forwarding address. On 29th April, 2016, the father made an application to permit his teenage children to come to the State. On 14th July, 2017, the father, after a visit abroad, came back through Dublin airport. According to the Minister's letter of 20th April, 2018, addressed to him, ' you hesitated for a considerable period of time before stating that your wife is Polish'. The 'wife' was telephoned and said she was not expecting anyone arriving through Dublin airport. The applicant's father could not explain why the 'wife' was not aware of his movements. After being allowed to proceed, an unidentified male repeatedly phoned immigration authorities to claim that Ms. N.M. did not understand the question that had been put. Conveniently, the applicant's father's solicitors now claim that he has memory issues, although the G.P.'s letter in that regard is extremely vague.

6 On 9th January, 2018, notice was served on the applicant of the deportation order with a direction to leave the State by 9th February, 2018 and failing that to present to the GNIB on 14th February, 2018. He failed to leave the State but did so present. On 16th January, 2018 the visa application for the applicant's brothers was refused. An appeal is pending. On 30th January, 2018 the applicant made an application under reg. 7(1) of the European Union (Free Movement of Persons) Regulations 2015 ( S.I. 548 of 2015) as a qualifying family member on the basis that he was dependent on an EU citizen, being his step-mother, and her husband, his father. On 14th February, 2018 he presented to GNIB and was given further directions. On 20th April, 2018 the father was written to, pointing out serious anomalies in his story and inviting submissions as to why his permission should not be revoked. Some submissions were made.

7 On 20th June, 2018, the applicant was arrested at an address in Portlaoise for the purposes of deportation. On 27th June, 2018, in a letter misdated as 21st June, 2018, the Minister refused the applicant's application under reg. 7 of the 2015 regulations on the basis that he was not a qualifying family member because he was not dependent on the EU citizen. It was noted that documents were submitted to the effect that the EU national's place of employment was Ballymount but in the EU 1 Form it was stated that it was Duleek. A P60 form for Ms. N.M. for 2014 was submitted, yet she had no employment record for 2014. Her limited earnings did not support the contention that the alleged employment was genuine given the place of the alleged employment. The Minister was not satisfied she was exercising EU law rights.

8 As regards the claim that the father and the EU citizen were living together in Portlaoise, the landlord was unaware of her living in the property. That letter does not state that the marriage was one of convenience because that decision had not, as of that point, been made. However, on 27th June, 2018, the applicant's father's residence card was revoked on the basis that the marriage was one of convenience. The father has indicated an intention to apply for review. On 28th June, 2018, the applicant's solicitors wrote indicating that a review of the residence refusal would be sought. On 16th July, 2018, the applicant submitted the application for review of the refusal of his residence application. An application for review by a person who does not have an actual EU law entitlement does not in itself confer any right to remain, although that is often afforded in practice. In any event, the review is not hugely relevant to the Article 40 application because the focus in the proceedings is on the legality of the original arrest.

9 I have received helpful submissions from Ms. Sara Moorhead S.C. (with Ms. Emily Farrell B.L.) for the respondent, who of course carries the burden of proof, and from Ms. Rosario Boyle S.C. (with Mr. Aengus Ó Corráin B.L.) for the applicant.

Procedural history

10 The present application for the applicant's release under Article 40.4.2° of the Constitution commenced on 22nd June, 2018 before Keane J., who refused the ex parte application for an inquiry into the legality of his detention. On the following Monday 25th June, 2018 the Court of Appeal allowed an appeal from that decision [Record No. 2018/267]. An ex tempore judgment of Hogan J. was delivered, which introduced a number of points into the case that, according to counsel for the applicant, had not hitherto been raised by her or featured in argument. The matter was then remitted to the President of the High Court and came before him on 26th June, 2018. It was transferred to me on the same date and I listed it for hearing on 29th June, 2018. On that date it came before Eagar J. who adjourned it to Monday 2nd July, 2018 and on the latter date stated that he was minded, although not on an application by the State, to convert the application into a judicial review. He also indicated that he was minded to give the applicant bail, although again I am informed by counsel that that did arise out of any submissions made by the parties.

11 The bail order made on 2nd July, 2018, states on its face that it was by consent, although from what I am told that does not in fact quite reflect the parties" positions. The State informs me that prior to hearing from the parties the learned judge indicated an intention to grant bail and that the terms of that bail were then agreed as...