Seredych v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Marie Baker
• Judgment Date: 13 October 2020
• Neutral Citation: [2020] IESC 62
• Court: Supreme Court
• Docket Number: S:AP:IE:2019:000228
• Date: 13 October 2020

Between/

Ivan Seredych

Applicant/Respondent

- And -

The Minister for Justice And Equality

Respondent/Appellant

[2020] IESC 62

Clarke C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Baker J.

S:AP:IE:2019:000228

THE SUPREME COURT

Judgment of Ms Justice Marie Baker delivered the 13 day of October 2020

1 The net question in this appeal is whether the Minister is obliged to revoke a deportation order or otherwise facilitate a person to enter the State when that person has been granted consent to make a subsequent application for international protection under s. 22 of the International Protection Act 2015 (“the 2015 Act”), the making of which requires his or her presence in the State.

2 It is an appeal by the Minister for Justice and Equality (“the Minister”) pursuant to Article 34.5.4° of the Constitution from the order of Humphreys J. made on 2 December 2019 for the reasons set out in a written judgment Seredych v. Minister for Justice and Equality (No. 3) [2019] IEHC 730, quashing the decision of the Minister of 4 April 2019 refusing to revoke the deportation order made against the respondent.

The factual and legal background

3 The respondent, a citizen of Ukraine, arrived in the State in May 2001 with his then wife, who was not an EU national. Their son was born in the State in June 2001. He had previously made an unsuccessful application for refugee status but the couple received permission to remain in the State. That permission was renewed from time to time, and the most recent one expired in June 2016.

4 The respondent separated from his wife and commenced a relationship with a naturalized Irish citizen. They married in September 2015, shortly after the birth of their first child and now have three children.

5 On 18 November 2015, the respondent was convicted of sexual assault under s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, upheld on appeal to the Court of Appeal: The People (DPP) v. Seredych [2016] IECA 415.

6 On 20 May 2016, solicitors for the respondent applied to renew his permission to remain due to soon expire. The Minister refused renewal on 5 September 2016 and a deportation order under the Immigration Act 1999 was made on 8 February 2018.

7 The challenge to the deportation order was rejected by the High Court on 22 March 2018: Seredych v. Minister for Justice and Equality [2018] IEHC 187. The respondent left the State on 24 April 2018 in compliance with the deportation order, and now resides in Ukraine, his country of nationality.

8 Before the respondent left the State, his solicitors applied for him to be readmitted to the protection process under s. 22 of the 2015 Act. On 15 February 2018, a recommendation under s. 22(5) was made by the international protection officer that the Minister refuse to consent to the application and an appeal was lodged under s. 22(8) of the 2015 Act on 27 February 2018. Almost one year later, on 11 February 2019, the International Protection Appeals Tribunal (“IPAT”) set aside the recommendation made by the international protection officer under s. 22(5) of the 2015 Act.

9 That had the effect by reason of s. 22(13)(b) of the 2015 Act, that the Minister was obliged to consent to the respondent making a subsequent application for international protection, and the Minister did so by letter of 26 February 2019 and required him to attend for interview within 10 days.

10 On 21 February 2019, presumably in anticipation of the consent of the Minister, the solicitors for the respondent wrote seeking confirmation that the deportation order “stands revoked”. The Minister treated the letter as an application to revoke the deportation order and refused on 27 March 2019.

11 The respondent also sought to obtain a visa, but this was rejected on 25 April 2019 on the basis that there was a deportation order in place.

The judgment of the High Court

12 Judicial review by way of certiorari of the refusal of the Minister to revoke the deportation order pursuant to his power under s. 3(11) of the 1999 Act was granted by Humphreys J. on the basis that the respondent had, by reason of the decision of IPAT and the giving by the Minister of consent to make a subsequent application, an implicit right to enter and remain in the State to pursue his application for international protection, and that the failure of the Minister to revoke the deportation order amounted to an unlawful frustration of the statutory purpose.

The submissions of the appellant

13 The appellant submits that the proper interpretation of the 2015 Act must have regard to the fact that in national, international and EU law the right to make an application for international protection is confined to those who are in the requested state, or at its frontiers, and that, as the respondent had left the State he can have no right to re-enter to process the application.

14 It is argued that the principle of frustration relied on by the trial judge has no force in public law in this jurisdiction save and insofar as there exists an obligation not to disregard the clear terms of an Act, the common law principle cannot create ad hoc remedies for perceived lacunae.

15 Finally, as the practical consequence of the order of Humphreys J. is that an entry visa was to be issued, it is argued that the trial judge erred as there exists no right to compel the revocation of a deportation order under national or EU law, and that the order made in the High Court fails to recognise that the right to grant or refuse a visa is quintessentially a matter for the executive.

The submissions of the respondent

16 The respondent submits that he is to be permitted to enter the State to have determined the fresh application for protection he has been given consent to make and to complete the process.

17 It is argued that the Minister cannot lawfully act in a manner that has the practical effect of obstructing the exercise of the right to make the subsequent application, the making of which has been sanctioned by the Minister himself, and that this arises in the light of established principles from East Donegal Co-Operative v. Attorney General [1970] IR 317, as developed thereafter.

18 The arguments will be set out in more detail below.

The questions in the appeal

19 Leave to appeal was granted [2020] IESCDET 43, on the questions of law concerning the interpretation of the powers contained in s. 3(11) of the 1999 Act and the interplay between the power to revoke a deportation order under that section and the grant of consent to make a subsequent application for international protection under s. 22 of the 2015 Act; whether the principles of frustration relied on by the trial judge exist in Irish law and, if so, whether they apply to the circumstances of this case.

20 Following case management hearings, the core questions identified in the appeal are:

(a) Was the trial judge correct in interpreting the International Protection Act 2015 solely in accordance with Irish law? If so, having regard to the interplay between ss. 2, 15, 16 and 22 of the International Protection Act 2015 and section 3(11) of the Immigration Act 1999 as amended, was the Minister required to revoke the deportation order as a matter of Irish law?

(b) If necessary, having regard to the answer to question 1, do Articles 32 and 39 of the Procedures Directive require a Member State to readmit into its territory an applicant who is granted permission to make a re-application for protection, and who was present in that territory when he or she applied for permission to reapply but has left the territory before the determination of that application in compliance with a deportation order validly made by the relevant authority of the member state?

(c) If the answer to question 1 is yes, and if the Court considers it necessary to consider, is the Minister thereby obliged to grant a visa to the respondent to facilitate his entry to the State?

(d) If the Court regards it as appropriate and necessary to decide, is the respondent barred from any entitlement to relief on discretionary grounds?

Presence in the State is required

21 It is fundamental to the difficulty presenting in this appeal that a person may seek international protection only when he or she is at the frontier of, or in, the State. This is apparent from s. 15 of the 2015 Act, which provides, in its material parts, as follows:

“15(1) Subject to sections 21 and 22, a person who has attained the age of 18 years and who is at the frontier of the State or who is in the State (whether lawfully or unlawfully) may make an application for international protection—

(a) on his or her own behalf or

(b) on behalf of another person who has not attained the age of 18 years and who is at the frontier of the State or who is in the State (whether lawfully or unlawfully), where the person who has attained the age of 18 years is taking responsibility for the care and protection of the person who has not attained the age of 18 years.

(2) Subject to subsections (3) and (4), an application for international protection shall be made in person and shall be made to the Minister.”

22 The applicant therefore cannot be an “applicant” in the meaning of the Act, as s. 2(1) defines an applicant as a person who “has made an application for international protection in accordance with section 15”.

23 Further, a subsequent application is to be made in person and therefore requires physical presence in the State, conditions the respondent could not satisfy.

24 Provisions exist to afford a right to remain to a person who has made an application for international protection. A person who is present at the frontiers of the State, and who from there makes an application for international protection, is by section 16 of the 2015 Act to be given permission to enter and remain in the State for the purpose of permitting an examination of that application:

“16(1)...