S v Governor of Midlands Prison
| Jurisdiction | Ireland |
| Judge | Mr Justice Peter Charleton |
| Judgment Date | 27 May 2019 |
| Neutral Citation | [2019] IESC 37 |
| Docket Number | [S.C. No. 182 of 2018],Supreme Court appeal number: S:AP:IE:2018:000182 [2019] IESC 000 Court of Appeal record number: 2018/309 [2018] IECA 384 High Court record number: 2018/787SS [2018] IEHC 442 |
| Court | Supreme Court |
| Date | 27 May 2019 |
[2019] IESC 37
Supreme Court appeal number: S:AP:IE:2018:000182
[2019] IESC 000
Court of Appeal record number: 2018/309
High Court record number: 2018/787SS
An Chúirt Uachtarach
The Supreme Court
Lawful custody – Deportation – Residence card – Applicant seeking habeas corpus – Whether the applicant was in lawful custody
Facts: The applicant, on 30 January 2018, sought a residence card, claiming to be a qualifying family member dependent on the alleged spouse of his father, she being a European Union citizen. That application was made pursuant to Article 7(1) of the European Union (Free Movement of Persons) Regulations 2015 (SI 548 of 2015). On 20 June 2018, the applicant was arrested in Portlaoise for the purposes of deportation, having already been served with a deportation notice on 9 January 2018. An application for habeas corpus was then made on his behalf. In the High Court, Humphreys J in a judgment dated 17 July 2018 held that the applicant was in lawful custody. This was appealed to the Court of Appeal. In a judgment dated 4 December 2018, Kennedy J again held that the applicant was in lawful custody. Both the High Court and the Court of Appeal held that there should be read into the Regulations a requirement that in order to render a stay in Ireland lawful under Article 7(6), a person applying for a residence card must first establish that he or she is an actual qualifying family member. By determination dated 15 January 2019 the Supreme Court gave the applicant leave to appeal the decision of the Court of Appeal.
Held by Charleton J that what was involved on this appeal was an issue of the interpretation of domestic legislation. Charleton J held that the issue could be resolved by posing the following question: did the Regulations grant the right to stay pending the resolution of an application? Charleton J held that the answer was clearly that the Regulations, in the replication of rights, did what was required by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States, but also granted that right.
Charleton J held that the applicant’s arrest was unlawful and at the date of the application under Article 40 of the Constitution he was not detained in accordance with law. Charleton J held that the order of the Court would reflect that.
Appeal allowed.
Since this is an application under Article 40.4 of the Constitution, the sole issue is as to whether the applicant SS, a former student from Pakistan, was or was not in lawful custody on his arrest pursuant to a deportation order. Since then he has been granted bail. No comment is made herein at to that course.
On 30 January 2018, the applicant sought a residence card, claiming to be a qualifying family member dependent on the alleged spouse of his father, she being a European Union citizen. That application was made pursuant to Article 7(1) of the European Union (Free Movement of Persons) Regulations 2015 (SI 548 of 2015). Despite the fact that the applicant is now 26 years of age and that all of his family are from Pakistan, he claimed to be a family member of the Romanian lady whom his father had purported to marry on 10 November 2014. Under the terms of the Regulations, Article 7(6) declares that an ‘applicant under paragraph (1) may remain in the State pending a decision on the application.’ The respondent Minister has claimed that this requires a non-literal construction.
On 20 June 2018, the applicant was arrested in Portlaoise for the purposes of deportation, having already been served with a deportation notice on 9 January 2018. An application for habeas corpus was then made on his behalf.
In the High Court, Humphreys J in a judgment dated 17 July 2018 held that the applicant was in lawful custody. This was appealed to the Court of Appeal. In a judgment dated 4 December 2018, Kennedy J again held that the applicant was in lawful custody. Her judgment centred on section 5 of the Interpretation Act 2005 and on the necessity to interpret the Regulations in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territory of the Member States. She held that the applicant was in lawful custody notwithstanding that an application had been made by him for a residence card. Her reasoning is set out in the judgment thus:
48. I am satisfied that the correct construction of Regulation 3(5) of the Regulations, requires that an applicant establish to the satisfaction of the Minister that he/she is an actual qualifying family member where such an application is made on the basis of an adult dependency. This must be done by providing to the Minister, at the time of application, evidence of sufficient cogency to demonstrate the prima facie existence of such dependency.
49. To interpret Regulation 7(6) as applying to every person who merely applies for a residence card pursuant to Regulation 7(1) would not reflect the intention of the legislator. I am satisfied on a consideration of the entirety of the Regulations, and the legislative scheme under which they were made, that it was not the intention of the Minister to provide a temporary right of residence to any person who simply submits a form seeking a residence card on the basis of dependency without first establishing on a prima facie basis that he/she is an actual qualifying family member.
50. It follows, accordingly, that it is not necessary that the Regulations expressly provide that an individual making an application on the basis of dependency must firstly establish that he/she is a qualifying family member and in that respect establish a relationship of dependency. It is clear from a consideration of the Regulations that, before an applicant can be considered as an applicant for a residence card, he/she must be a qualifying family member. Regulation 3(5) provides that a person is a qualifying family member where the person is a direct descendant of the Union citizens” spouse, and is a dependent of the Union citizens” spouse. Therefore, the applicant must establish both elements to the satisfaction of the Minister before one can be considered to be an actual qualifying family member. Any other construction of the Regulation would be contrary to the intention of the Minister.
In summary, both the High Court and the Court of Appeal held that there should be read into the Regulations a requirement that in order to render a stay in Ireland lawful under Article 7(6), a person applying for a residence card must first establish that he or she is an actual qualifying family member. This, however, was not the procedure pursued by the Minister in dealing with this application. Furthermore, there is no basis either from the plain words of the text or from the context for reading such an interpretation into the plain words of the Regulations. Following an application for habeas corpus, the applicant has been on bail since an early stage. By determination dated 15 January 2019 this Court gave the applicant leave to appeal the decision of the Court of Appeal. During the case management hearings pending this appeal, the applicant expressly stated that he wishes to return to Pakistan of his own motion but not in circumstances where he had been lawfully arrested. This judgment makes no comment as to whether that statement is genuine or as to whether the deportation order against him should not be enforced notwithstanding that his arrest was unlawful.
The background facts to this matter are set out in the judgment of Humphreys J in the High Court. The apparent lack of merit in the claim may have influenced the interpretation of the relevant subsidiary legislation both there and in the Court of Appeal. These are the facts as found by the High Court:
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....
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