S.T.E. v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date24 June 2016
Neutral Citation[2016] IEHC 379
Date24 June 2016
Docket Number[2015 No. 118 J.R.]

[2016] IEHC 379

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 118 J.R.]

BETWEEN
S.T.E., A.A.

AND

Z.N.T (A MINOR SUING BY HIS FATHER AND NEXT FRIEND S.T.E.)
APPLICANT
AND
MINISTER FOR JUSTICE AND EQUALITY

AND

THE ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – S. 3(11) of the Immigration Act, 1999 – Illegal Immigrants (Trafficking) Act 2000 – Refusal to revoke deportation of one parent – Art. 40.3 of the Constitution – Art. 8 of European Convention on Human Rights (ECHR) – Family ties

Facts: The first named applicant sought an order of certiorari for quashing the decision of the first named respondent refusing to revoke the deportation order made against the first named applicant. The first named applicant being married to the second named applicant and the father of the third named applicant contended that the first named respondent had interfered with his family rights by allowing the second named applicant/mother to remain in the State along with the third named applicant/child. The first named applicant alleged that the grant of permission to stay in Ireland was made subject to the condition that both the parents would live apart from each other in order to avail rent benefits.

Mr. Justice Richard Humphreys granted an order of certiorari to the first named applicant, thereby quashed the decision of the first named respondent for refusing to revoke the deportation order. The Court also directed that the first named applicant's application under. s. 3(11) of the Immigration Act, 1999 should be considered afresh by the first named respondent in the light of the present judgment. The Court granted an injunction for restraining the first named respondent from deporting the first named applicant until his s. 3(11) application under the Act of 1999 was determined. The Court held that the decision of the first named respondent for allowing the mother to remain in the State with the child whilst she was not legally entitled to stay in the State and separating the father from his family was a contravention of art. 8 of ECHR. The Court found that the scrutiny of an application of an individual member of a family by the first named respondent without due regard to the other members who were dependent upon him was discriminatory, irrational and breach of substantive family rights.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2016
1

The first named applicant arrived in the State from Cameroon in October 2003, having had three children with two different partners in Cameroon.

2

He applied for asylum, which was refused by the Minister on 14th July, 2005. A deportation order was made on 5th July, 2006, and subsidiary protection was also refused at that time. The deportation order was notified to the first named applicant on 15th September, 2006.

3

The second named applicant arrived in the State from Morocco in September, 2007.

4

In 2008, she was refused asylum and brought judicial review proceedings challenging that refusal [2008 No. 1214 J.R.] (the first judicial review proceedings).

5

The parties met in or about October, 2008.

6

At some stage during that year, the first named applicant unsuccessfully made an application for the revocation of the deportation order.

7

On 22nd March, 2010, the first named applicant launched a judicial review challenging the refusal of asylum and subsidiary protection and the deportation order [2010 No. 529 J.R.] (the second judicial review). This challenge was primarily based on constitutional grounds as it was clearly significantly out of time in terms of s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

8

At some point during 2010, the first named applicant made a second application for revocation of the deportation order under section 3(11). This was also refused.

9

On 12th October, 2011, Cooke J. gave a decision refusing leave in the first judicial review application ( A.A. v. Minister for Justice, Equality and Law Reform [2011] IEHC 389 (Unreported, High Court, 12th October, 2011).

10

On 6th December, 2011, the Minister decided not to recognise the second named applicant as a refugee and made a proposal to deport her.

11

On 8th December, 2011, the second named applicant applied for subsidiary protection and leave to remain.

12

During early to mid 2012, the parties began an intimate relationship. The second named applicant's affidavit implies that they fell in love at some point prior to that, although the first named applicant is silent about that aspect. I do not think any significance can be attached to the slightly different way in which the parties word the history of their courtship.

13

On 23rd August, 2012, the parties went through a religious ceremony of marriage, not one recognised for legal purposes.

14

The second named applicant withdrew her subsidiary protection application on 8th March, 2013.

15

The third named applicant was born to the parties on 22nd March, 2013.

16

On 21st August, 2013, the second named applicant was granted permission to remain in the State for a period of two years. I am informed on behalf of the State that this impliedly involved the withdrawal of the proposal to deport. The grant of the permission to remain had the effect of requiring the couple to live apart because the second named applicant, being in receipt of permission, was required to move from direct provision to the private rented sector. I was informed that if she accommodated the first named applicant in her private accommodation, she would lose an entitlement to rent supplement. Conversely the first named applicant would also lose his direct provision allowance and medical card if he moved outside of the direct provision accommodation. The net result was that the first named applicant, by virtue of the way the State has approached this matter, lived in Cork since August, 2013, whereas the second named applicant has lived with their child in Midleton.

17

The first named applicant made a third application under s. 3(11) on 15th July, 2014. That submission clearly implies that the applicants are an intact family and refers to ‘3 family members’.

18

In November, 2014, the second judicial review was withdrawn.

19

On 3rd December, 2014, further s. 3(11) submissions were made, which included a letter from a Mr. and Mrs. Michael and Catherine Blaney testifying to the activities of the first named applicant.

20

Following an examination of file dated 3rd February, 2015, the first named applicant was notified that his s. 3(11) application had been refused on 23rd February, 2015.

21

The present proceedings challenging the refusal of the s. 3(11) application were instituted on 4th March, 2015, within time.

22

In August, 2015, the second named applicant was given renewed permission to remain in the State until August, 2017.

23

In or around April, 2016 the first named applicant was afforded alternative accommodation in Dublin. The family remains intact however and I am told that the parents intend to marry and live together if their legal problems are resolved.

Applications for amendment of pleadings and discovery
24

During the hearing Mr. Mark de Blacam S.C. (with Mr. Gary O'Halloran B.L.) for the applicant applied for an amendment to, inter alia, plead that the first named applicant had essentially been discriminated against the second named applicant, in circumstances where the Minister allowed the mother to remain in Ireland but required the deportation. In fairness to the respondent I should record that this point arose as a result of a discussion between Mr. de Blacam and the court as to the nature of the discrimination allegedly arising, in circumstances where only a general plea of discrimination had been made in the original pleadings in the sense that ground 9 pleaded the treatment of the first named applicant in a different manner from ‘others in a like position’. Although this amendment was opposed by Mr. David Conlan Smyth S.C. (with Ms. Kilda Mooney B.L.) for the respondent, I considered that the requirements as set out in Keegan v. An Garda Síochána Ombudsman Commission [2015] IESC 68 (Unreported, Supreme Court, 30th July, 2015), as I considered in B.W. v. Refugee Appeals Tribunal [2015] IEHC 759 (Unreported, High Court, 27th November, 2015), had been met. There was an explanation for the failure to plead the matter originally, namely oversight by the applicant's legal advisers. In any event, the amendment was, to some extent, a particularisation of the most acute type of discrimination against the first named applicant, in circumstances where a general claim of discrimination against the first named applicant had already been made in the pleadings as initiated, as noted above. Secondly, I was satisfied that there were substantial grounds for the contention contained in the amendment. Thirdly, I was of the view that there was no irremediable prejudice to the respondent. I, therefore, allowed the amendment. This, in my view, is clearly a case where the comment of Posner J. in Reed v. Illinois (Case 14-1745, U.S. Court of Appeals for the 7th Circuit, 30th October, 2015) at p. 9 applies: ‘[w]hat is unfair in the present context is to deny, without a good reason, a party's right to press a potentially winning argument’.

25

Mr. de Blacam also applied for discovery of material related to the alleged ministerial policy of giving long-term illegal immigrants permission to remain. I refused this application (which was not in any event formally brought by motion) because it was of an eleventh-hour nature and because the applicants had not demonstrated that they required discovery in order to make any point they wished to make relating to any inference that should be drawn from a ministerial failure to disclose...

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