Singh v The Minister for Justice and Equality; Li v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 01 July 2019
• Neutral Citation: [2019] IEHC 537
• Date: 01 July 2019
• Court: High Court
• Docket Number: [2017 No. 719 J.R.] [2017 No. 18 J.R.]

[2019] IEHC 537

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 719 J.R.]

[2017 No. 18 J.R.]

BETWEEN

AMARDEEP SINGH, UNA KUMAR, ROWAN KUMAR (A MINOR SUING THROUGH HIS MOTHER AND NEXT FRIEND UNA KUMAR) & MAYA KUMAR (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND UNA KUMAR)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

BETWEEN

YUNLONG LI

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Certiorari – Permission to remain – Deportation order – Applicants seeking certiorari – Whether a challenge to a proposal is generally appropriate

Facts: The first applicant in the Singh proceedings is a national of India who arrived in the State on 1st September, 2014 and was granted a student permission. That expired on 14th September, 2015 and was not renewed. He claimed that in December, 2014 he met the second applicant, an Irish citizen, and they became romantically involved. The first applicant then married a Portuguese national in November, 2015. The latter then immediately returned to Portugal. He claimed that in December, 2015 he recommenced his relationship with the second applicant and in January, 2016 moved in with her and her two children, the third and fourth applicants. On 17th August, 2016 he applied for permission to remain under s. 4 of the Immigration Act 2004 and also applied on the basis of any other appropriate scheme. His application was refused by the respondent, the Minister for Justice and Equality, on 30th August, 2017 on the basis that, given the lack of a subsisting permission, his case did not fall to be dealt with under s. 4 of the 2004 Act. Rather the Minister proposed to make a deportation order. Leave in the proceedings was granted on 25th September, 2017, the relief sought being an order of certiorari against “the decision of the respondent notified to the first named applicant by way of letter dated 30th August, 2017”. The applicant in the Li Proceedings arrived in Ireland from China in 2001 on a stamp 2 student permission. That expired in December, 2004. On 13th May, 2015, he applied to have his permission regularised on a stamp 4 basis under the 2004 Act or any other relevant scheme. On 19th December, 2016 the respondent Minister wrote indicating that the application would not be dealt with under s. 4 of the 2004 Act as the applicant was illegally present. The Minister went on to propose to make a deportation order. The statement of grounds filed on 11th January, 2017 sought certiorari of the proposal to make a deportation order under s. 3 of the Immigration Act 1999 and mandamus requiring the Minister to consider the application for permission to remain.

Held by the High Court (Humphreys J) that: (i) a challenge to a mere proposal is generally inappropriate; (ii) an applicant cannot challenge a decision on the basis of a point not actually made; (iii) insofar as the applications related to the 2004 Act, they were misconceived; (iv) insofar as the applications related to a process outside the 2004 Act, the applicants were not as yet disadvantaged.

Humphreys J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of July, 2019

Facts in Singh

1 The first-named applicant is a national of India who arrived in the State on 1st September, 2014 and was granted a student permission. That expired on 14th September, 2015 and was not renewed. He has been present unlawfully since then. He claims that in December, 2014 he met the second-named applicant and they became romantically involved. The second-named applicant is Irish and I am told that she was previously married to another Indian national. The first named applicant then married a Portuguese national in November, 2015. Coincidentally the latter then immediately returned to Portugal. The first-named applicant makes the claim at para. 6 of his affidavit that they separated after just one month because he ‘ confessed to still being in love with the second named applicant’. Having said that, he does not appear to have made an EU Treaty Rights application. He then says that in December, 2015 he recommenced his relationship with the second-named applicant and in January, 2016 moved in with her and her two children who are Irish citizens, the third and fourth-named applicants.

2 On 17th August, 2016 he applied for permission to remain under s. 4 of the Immigration Act 2004 and also applied on the basis of any other appropriate scheme. At the time he was not in possession of any existing permission under s. 4 of the 2004 Act. His application was refused by the Minister on 30th August, 2017 on the basis that, given the lack of a subsisting permission, his case did not fall to be dealt with under s. 4 of the 2004 Act. Rather the Minister proposed to make a deportation order.

3 Leave in the present proceedings was granted on 25th September, 2017, the relief sought being an order of certiorari against ‘ the decision of the respondent notified to the first named applicant by way of letter dated 30th August, 2017’. The Minister did not progress the proposed deportation since then but there was nothing legally stopping him from doing so.

Facts in Li

4 The applicant arrived in Ireland from China in 2001 on a stamp 2 student permission. That expired in December, 2004 and he has been unlawfully present in the State since then. On 13th May, 2015, he applied to have his permission regularised on a stamp 4 basis under the Act of 2004 or any other relevant scheme, as it was put. On 19th December, 2016 the Minister wrote indicating that the application would not be dealt with under s. 4 of the 2004 Act as the applicant was illegally present. The Minister went on to propose to make a deportation order. The reliefs sought in the Li proceedings are in a different form. The statement of grounds filed on 11th January, 2017 seeks certiorari of the proposal to make a deportation order under s. 3 of...