Seredych v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 October 2019
• Neutral Citation: [2019] IEHC 730
• Date: 29 October 2019
• Docket Number: [2019 No. 356 J.R.]
• Court: High Court

[2019] IEHC 730

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 356 J.R.]

BETWEEN

IVAN SEREDYCH

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(NO. 3)

Asylum & immigration – Sexual offences – Deportation order – Application for international protection – IPO decision set aside and fresh application made – Application for judicial review

Facts: The applicant had been made the subject of a deportation order following his conviction for a sexual assault. Following the grant of a deportation order, the applicant applied for International Protection, which was refused in 2018. With the applicant having left the State, the IPAT set aside the earlier refusal, but the respondent refused to revoke a deportation order or grant a visa to return on receipt of his fresh application for International Protection. Proceedings were therefore instigated with a view to seeking leave for judicial review.

Held by the Court, that the application would be granted. Having considered the arguments, the respondent was incorrect in refusing to revoke the deportation order and the Court was therefore prepared to do so and remit the matter to the respondent for reconsideration.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of October, 2019

1 The applicant arrived in Ireland from Ukraine in May, 2011 and was granted residency as the father of an Irish citizen child born to him and his first wife in 2001. On 15th July, 2002 he was convicted in the District Court of having no insurance, with four other charges taken into account. In 2006 or 2007 he divorced his first wife and around that time, or in 2008, he met and began cohabiting with a Lithuanian woman. She had three children from a previous relationship and became a naturalised Irish citizen in 2014. On the night of 9th to 10th June, 2012 the applicant committed the offence of sexual assault in the course of acting as a taxi driver.

2 In July, 2015, the applicant and his second wife had their first child and the couple then married on 23rd September, 2015. In November, 2015, the applicant was convicted of the offence of sexual assault in the Circuit Court, after contesting the charge and attacking the evidence of the injured party, which of course he was entitled to do. He was then sentenced to three years’ imprisonment. A second child was born in 2016. His appeal against conviction was dismissed in D.P.P. v. Seredych [2016] IECA 415 (Unreported, Court of Appeal, 3rd November, 2016).

3 A deportation order was made on 8th February, 2018. On 13th February, 2018, the applicant's solicitor Ms. Wendy Lyon, then of KOD Lyons, applied on his behalf for readmission to the protection process under s. 22 of the International Protection Act 2015. That relatively short application form is a crucial document for present purposes. Ordinarily, while the introduction of a protection element gives rise to a requirement for redaction in proceedings, given that the applicant has been named in so many judgments to date, his counsel has helpfully stated that there is no objection to that continuing, and indeed that is only practical because otherwise it would be very difficult to make sense of the procedural history here.

4 On 15th February, 2018, the International Protection Office rejected the application under s. 22. On 27th February, 2018 the applicant submitted an appeal to the International Protection Appeals Tribunal. I dismissed a challenge to the deportation order in Seredych v. Minister for Justice and Equality (No. 1) [2018] IEHC 187 (Unreported, High Court, 22nd March, 2018). I refused leave to appeal to the Court of Appeal in Seredych v. Minister for Justice and Equality (No. 2) [2018] IEHC 307 (Unreported, High Court, 23rd April, 2018).

5 The applicant then left the State on 24th April, 2018. The Supreme Court refused leapfrog leave to appeal in Seredych v. Minister for Justice and Equality [2018] IESCDET 157 (26th October, 2018).

6 On 11th February, 2019 the IPAT gave a written decision without an oral hearing setting aside the recommendation of the IPO. On 20th February, 2019, the applicant signed an application form to the Strasbourg Court claiming that he was a victim of violations of arts. 8 and 13 of the ECHR. On 26th February, 2019 the respondent consented to the applicant making a subsequent application for international protection. The letter stated that the applicant should attend the IPO within ten days. Obviously he failed to do that because he was in the Ukraine. On 1st April, 2019 the Minister refused a request to revoke the deportation order and wrote to KOD Lyons to that effect. On 3rd April, 2019, Ms. Lyon informed the applicant of the adverse decision and on 12th April, 2019, she left KOD Lyons to set up her own firm of solicitors, Abbey Law. When leaving an existing firm, in the absence of agreement, a solicitor is not allowed by the Law Society to specifically volunteer to clients that she or he is leaving or to take any papers, so it was not until the applicant contacted KOD Lyons that he was informed that the solicitor who had been handling his file had moved on. He then made contact with Ms. Lyon at her new premises on 19th April, 2019.

7 On 25th April, 2019 the Minister declined to give the applicant a visa to return to the State and on the same date the applicant gave Ms. Lyon an authorisation to take up his file. She has affirmed on affidavit that her practice was to forward all such authorities to her former employer although she cannot find the specific original email in this case but did send a reminder on 2nd May, 2019. There was then something of an exchange of correspondence between her and her former employers regarding taking up the file and the final relevant documents seem to have been furnished on 4th June, 2019 apart from the applicant's visa application, which only came through later on 28th June, 2019. The present proceedings were filed on 7th June, 2019. A third child of the marriage was born very recently in or about June, 2019 having been conceived when the wife went to Ukraine last year to visit the applicant.

8 At an early stage of the proceedings, counsel for the respondent complained about the lack of an affidavit from the applicant personally, contrary to High Court Practice Direction HC81, but having considered submissions from both sides I held that the issue in the present case turned on a point of law which did not appear to require personal evidence from the applicant. I then granted leave on 15th July, 2019. On 18th July, 2019 the Strasbourg Court held the application to that court was inadmissible as manifestly unfounded ( Seredych v. Ireland (Application No. 21718/19)). A statement of opposition was delivered dated 3rd September, 2019.

9 On 22nd October, 2019, the first day of the hearing of the action, I gave liberty to the applicant to file a further affidavit of Ms. Lyon explaining the delay in instituting the proceedings. I also ordered by consent that the affidavits in the first judicial review would be evidence in the present judicial review insofar as they are relevant, and helpfully a book of affidavits in the first judicial review has been prepared and made available to me. I have received submissions from Mr. Anthony Lowry B.L. who conducted the hearing, and Mr. Michael Lynn S.C., who addressed the court on the post-judgment mention dates, for the applicant and from Ms. Siobhán Stack S.C. (with Mr. John P. Gallagher B.L.) for the respondent.

Statutory framework in outline

10 The basic procedure for a reapplication for international protection is that the applicant has to obtain the consent of the Minister before the actual reapplication can be made. A recommendation is made by the IPO as to whether the Minister should consent to the application or not, and an adverse recommendation can be appealed to the IPAT. If there is a favourable decision from either body, by virtue of s. 22(13) of the 2015 Act the Minister is required to give such consent and following such a consent the applicant then makes an application under s. 15 of the 2015 Act. Only at that point is he or she deemed to be an “applicant” under s. 2 of the 2015 Act.

Complaint regarding breach of O. 84

11 Ms. Stack reruns the complaint about the lack of an affidavit from the applicant personally which had been made by Mr. Gallagher in the directions list at an earlier stage, but this time under the heading of O. 84 of the Rules of the Superior Courts rather than Practice Direction HC81. But O. 84 is not absolute. Normally it does require a personal averment from the applicant but there can be exceptions. If the matter is essentially a point of law it may not so require and this is such a case.

Withdrawn objection regarding time

12 Ms. Stack also initially objected to the proceedings as being out of time but following the delivery of the fourth affidavit of Ms. Lyon the objection was very sensibly withdrawn. In any event, I am satisfied that there is good and sufficient reason for an extension of time.

Objection that mandatory relief is a non-starter

13 Ms. Stack makes the point that the applicant has not expressly claimed any mandatory relief and submitted that certiorari of the adverse decisions in and of itself does not do anything practical for the applicant. That submission is unfounded but I will explain why at a later stage.

Objection that the applicant got what he asked for and is not entitled to anything else

14 The argument is made that the ministerial consent furnished under s. 22(13) of the 2015 Act does not imply a right to enter or remain. Such a right, it is argued, depends on actually making a substantive application for protection under s. 15. The contention that the applicant therefore got what he asked for and is not entitled to the additional rights claimed in this action is essentially the gist of the argument...