S.T.P. v The Minister for Justice and Equality

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMs. Justice Faherty
Judgment Date22 February 2021
Neutral Citation[2021] IECA 50
Docket NumberAppeal Number: 2017/164
Date22 February 2021

[2021] IECA 50

THE COURT OF APPEAL

Whelan J.

Faherty J.

Collins J.

Appeal Number: 2017/164

Between:
S.T.P.
Applicant/Appellant
and
The Minister for Justice and Equality
Respondent

Judicial review – Deportation – Fair procedures – Appellant seeking leave for judicial review – Whether the respondent acted unreasonably and irrationally and in breach of the principles of fair procedures and natural and constitutional justice

Facts: The appellant’s appeal to the Court of Appeal concerned a largely unsuccessful application for leave to seek judicial review by the appellant wherein he sought leave to seek an order, inter alia, of certiorari to quash the decision of the respondent, the Minister for Justice and Equality, to make a deportation order against him. The appellant’s notice of appeal advanced four grounds of appeal. Ground one asserted that the trial judge erred in law and in fact in determining that the Minister did not fail in her duty to treat the family holistically. Ground two asserted that the trial judge erred in law and in fact in finding that the Minister did not err in law and act in breach of the substantive rights of the appellant, his partner and her child in determining the appellant’s application on the basis of hypothesis and on the basis that she may or may not reach the opposite conclusion in the case of the appellant’s partner and her child. Ground three asserted that the trial judge erred in determining that the Minister did not breach the substantive rights of the appellant, his partner and her child in deciding that compelling justification was not required to justify the appellant’s removal from the State. Ground four asserted that the trial judge erred in determining that the Minister did not fail in the duty to rationally treat the family unit collectively in the manner identified by Humphries J. in S.T.E. & Ors v Minister for Justice and Equality & Ors [2016] IEHC 379.

Held by Faherty J that she would grant leave for judicial review deriving from grounds (i) and (ii) of the Statement of Grounds, as reformulated below: “The Minister erred in law and acted in breach of the substantive rights of the appellant, his partner and her child, acted unreasonably and irrationally and in breach of the principles of fair procedures and natural and constitutional justice insofar as: (i) when presented with (and accepting of) the appellant’s de facto family unit and the possibility that the appellant’s partner’s duration in the State might well lead to her and her child to receiving permission to reside in the State, she failed, as a matter of fairness and good administration, to first determine the appellant’s partner’s application prior to determining that of the appellant, thereby depriving the appellant (in the context of the requisite weighing exercise when considering his application) of the benefit of the favourable outcome for his partner; (ii) when she engaged (in the course of the requisite weighing exercise) with the hypothesis that the appellant’s partner and her child would be granted leave to remain in the State, she did so in a manner that deprived the appellant of a lawful consideration of the benefit of that favourable factor by failing to weigh in the balance that their family life would be sundered if the appellant’s partner and her child got leave to remain and he was deported, and by considering the favourable outcome for the appellant’s partner’s application solely through the prism of a future family reunification application in circumstances where what the appellant was seeking was permission to remain in the State in the context, inter alia, of being part of a de facto family unit in the State.

Faherty J held that the Statement of Grounds must be amended to accord with the grounds upon which relief was being granted. She held that the appeal would be allowed to the extent set out above.

Appeal allowed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 22 nd day of February 2021

1

. This appeal concerns a largely unsuccessful application for leave to seek judicial review by the appellant wherein he sought leave to seek an order, inter alia, of certiorari to quash the decision of the respondent (hereinafter “the Minister”) to make a deportation order against him.

Background
2

. The appellant is a Nigerian national who arrived in the State in February 2013. Following a failed asylum application, by way of application made in October 2016 pursuant to s.3 of the Immigration Act 1999 as amended (“the 1999 Act”), the appellant applied for leave to remain in the State. The appellant has been in a relationship with his partner (a Zimbabwean National) since 2013. His partner arrived in the State in 2010. She is also a failed asylum seeker. The appellant, his partner and her daughter have resided together as a family unit in the State since in or about 2013. It is common case that the applicant's partner and her child made an application to the Minister for leave to remain in the State some months prior to the appellant's leave to remain application. The appellant's application was determined in advance of his partner's application.

The decision on the appellant's leave to remain application
3

. In a decision made on 17 February 2017 and notified on 1 March 2017, the Minister refused the appellant's application and he was issued with a deportation order dated 17 February 2017. Some nine months or so after the appellant received his decision, his partner and her child were granted leave to remain. While it is acknowledged by the appellant that this post hoc decision cannot assist him, the issues in this appeal largely relate to the appellant's contention that the decision made in respect of his application for leave to remain should be quashed because of the alleged failure of the Minister to determine his partner's application prior to or in tandem with his application, or failing that, afford him (when his application was being considered and when relevant factors were being weighed) the benefit of certain assumptions made by the decision-maker as to the outcome of his partner's application. It is in this context that the appellant appeals the judgment and Order the High Court of 31 March 2017, of which more anon.

The Examination of File
4

. The Minister's considerations, pursuant to s.3 of the 1999 Act and s.5 of the Refugee Act 1996, of the appellant's application for leave to remain in the State are contained in the “Examination of File” which was provided to the appellant with the refusal letter. As required by s.3(6)(c) of the 1999 Act, the Examination of File commenced with the decision-maker noting the appellant's personal circumstances and his submission that he resided with his partner and her child in the same household since in or about 2013 and that they had been treated and recognised as a family unit since that time by State authorities, including by the provision of accommodation for them as a family unit. It was noted that the appellant acted in loco parentis to his partner's child including attending parent/teacher meetings and helping her with homework. The fact that the appellant and his partner had undergone a religious marriage ceremony was also noted as was the fact that they had contacted the Civil Registration Office regarding their proposed civil marriage ceremony. It was noted that the appellant's partner was awaiting the outcome of her and her child's applications for leave to remain.

5

. As required by s.3(6)(d) of the 1999 Act, the appellant's connection with the State was addressed. There was reference to his marriage to his partner and their living together in the same household as a family unit. Reference was made to the appellant's representation that his partner and her child were persons who were waiting in excess of five years for final decisions in relation to their status and his representation that he and his family had a legitimate expectation that as he and they had not come to the adverse attention of the gardaí, they would be granted leave to remain, in line with, what was asserted, was the practice of the Minister in this regard. Reference was made to the appellant's submission that if his family were to be deported they would be treated in a discriminatory and arbitrary manner in that persons in similar situations had been allowed to remain in the State. It was determined that the appellant's connection to the State lay in his failed protection claims in the State.

6

. Pursuant to s.3(6)(e) and (f) of the 1999 Act, the “Examination of File” documented the appellant's employment record prior to his arrival in the State and his future plans and prospects, including his having engaged in voluntary work since 2015. While noting that his employment prospects were reasonable it was nonetheless concluded that the only employment which would be available to him would be positions which could be filled by reference to an Irish or EU national, or a third country national with a right of residence in the State. Accordingly, it was considered that it was hardly in the interest of the common good that the appellant (with no right of residence in the State) would be enabled to take up employment in the State in positions of paid employment that could impact negatively on unemployed Irish and EU nationals.

7

. Pursuant to s.3(6)(g), it was noted that the appellant had not come to the attention of the Gardaí during his time in the State.

8

. Under s.3(6)(h) “Humanitarian Considerations”, the decision-maker referred to undated letters on file from the appellant's partner and her child supporting his claim that they were a family unit. His partner's poor health and the supportive role played by the appellant in this regard was noted albeit that no medical evidence had been produced to indicate the seriousness of his partner's medical condition or her level...

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1 cases
  • Marie Pamela Chevathyan v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 10 March 2021
    ...that this case falls to be treated in the same way as the Court of Appeal recently decided STP v. Minister for Justice and Equality [2021] IECA 50, pointing in particular to the observations of Faherty J. at para.41 of her judgment in that case, where she observes, inter alia, that “ The fa......

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