Sivsivadze and Others v Minister for Justice and Equality, Ireland and Attorney General (no 1)

• Jurisdiction: Ireland
• Judge: Kearns P.,Mr. Justice Hogan
• Judgment Date: 21 June 2012
• Neutral Citation: [2012] IEHC 244,[2012] IEHC 137
• Court: High Court
• Date: 21 June 2012

[2012] IEHC 137

THE HIGH COURT

[No. 1066 J.R/2011]

Sivsivadze & Ors v Min for Justice & Ors

BETWEEN/

LELA SIVSIVADZE, SOFIA ARABULI (A MINOR SUING BY HER MOTHER AND NEXT FRIEND LELA SIVSIVADZE) MARIAM TOIDZE (A MINOR SUING BY HER MOTHER AND NEXT FRIEND LELA SIVADZE) AND DAVIT ARABULI

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(9)

IMMIGRATION ACT 1999 S3(11)

TOIDZE (ORSE ARABULI) v GOVERNOR OF CLOVERHILL PRISON UNREP HOGAN 24.10.2011 2011/47/13408 2011 IEHC 395

CONSTITUTION ART 42.4.2

CONSTITUTION ART 40

U (MA) & ORS v MIN FOR JUSTICE UNREP HOGAN 13.12.2010 2010/50/12672 2010 IEHC 492

ALIENS ORDER 1946 SI 395/1946 ART 13(1)

EMRE v SWITZERLAND UNREP ECHR 22.5.2008 (APPLICATION NO 42034/04)

OMOREGIE v NORWAY 2009 IMM AR 170

EEC DIR 2008/115 ART 11(2)

NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622

O (A) v MIN FOR JUSTICE (NO.2) UNREP HOGAN 17.1.2012 2012 IEHC 79

C (T) v MIN FOR JUSTICE 2005 4 IR 109

S (P) & E (B) v MIN FOR JUSTICE UNREP HOGAN 23.3.2011 2011/45/12794 2011 IEHC 92

A (X)(AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.10.2011 2011/1/192 2011 IEHC 397

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

SHUM v IRELAND 1986 ILRM 593

OSHEKU v IRELAND 1986 IR 733

LAURENTIU v MIN FOR JUSTICE 1999 4 IR 42

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

CONSTITUTION ART 42

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

COLLOONEY PHARMACY LTD v NORTH WESTERN HEALTH BOARD 2005 4 IR 124

LEONTJAVA v MIN FOR JUSTICE 2004 1 IR 591

STATE (QUINN) v RYAN 1965 IR 70

INTERPRETATION ACT 2005 S22(1)

JOHN GRACE FRIED CHICKEN LTD & ORS v CATERING JOINT LABOUR COMMITTEE & ORS UNREP FEENEY 7.7.2011 2011 IEHC 277 2011 3 IR 211 2011 1 ILRM 392

CONSTITUTION ART 15.2.1

RSC O.84 r23(2)

RADOVANOVIC v AUSTRIA 2005 41 EHRR 6

ANTWI v NORWAY 2012 ECHR 259

NUNEZ v NORWAY 2011 ECHR 1047

HEANEY v IRELAND 1994 3 IR 593

CONSTITUTIONAL LAW

Personal rights

Immigration - Deportation - Indefinite effect - Family rights - Married couple - Integrity of asylum system - Proportionality - Whether indefinite deportation proportionate to object - Whether indefinite deportation contrary to European Convention on Human Rights - Judicial review - Leave - Substantial grounds - MAU v Minister for Justice [2010] IEHC 492 (Unrep, Hogan J, 13/12/2010); North Western Health Board v HW [2001] 3 IR 622; AO v Minister for Justice [2012] IEHC 79, (Unrep, Hogan J, 17/1/2012); TC v Minister for Justice [2005] IESC 42, [2005] 4 IR 109; Osayande v Minister for Justice [2003] IESC 3, (Unrep, SC, 23/1/2003), PS v Minister for Justice [2011] IEHC 92, (Unrep, Hogan J, 23/3/2011); XA v Minister for Justice [2011] IEHC 397, (Unrep, Hogan J, 25/10/2011); Laurentiu v Minister for Justice [1999] 4 IR 92; In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; Collooney Pharmacy Ltd v North Western Health Board [2005] IESC 44, [2005] 4 IR 124; Leontjava v DPP [2004] IESC 37, [2004] 1 IR 591; The State (Quinn) v Ryan [1965] IR 70; John Grace Fried Chicken Ltd v The Catering Joint Labour Committee [2011] IEHC 277, [2011] 3 IR 211; Heaney v Ireland [1994] 3 IR 593; Emre v Switzerland (No 1) (App No 42034/04) (Unrep, ECHR, 22/5/2008); Antwi v Norway (App No 26940/10) [2012] ECHR 259; Emre v Switzerland (No 2) (App No 5056/10) (Unrep, ECHR, 11/1/2012); Nunez v Norway (App No 55597/09) [2011] ECHR 1047; Omoregie v Norway (App No 265/07) [2008] ECHR 761 and Radovanovic v Austria (App No 42703/98), [2004] ECHR 169 considered - Pok Sun Shum v Ireland [1986] ILRM 593 and Osheku v Ireland [1986] IR 733 doubted - Aliens Order 1946 (SI 395/1946) - Rules of the Superior Courts 1986 (SI 15/1985), O 84 - European Convention on Human Rights Act 2003 (No 20), s 5 - Immigration Act 1999 (No 22), ss 3 & 5 - Interpretation Act 2005 (No 23), s 22 - Constitution of Ireland 1937, Articles 15, 41 & 42 - Directive 2008/115/EC, article 11 - European Convention on Human Rights 1950, article 8 - Leave granted (2011/1066 - Hogan J - 26/4/2012) [2012] IEHC 137

Sivsivadze v Minister for Justice and Law Reform

Facts: The applicant challenged the order of refusal of the revocation of the deportation order. The applicant further sought leave to challenge the constitutionality (and ECHR compatibility) of s. 3(1) of the Act of 1999. The applicant contended that a deportation order of indefinite duration violated art. 8 of the European Convention on Human Rights (ECHR).

Mr. Justice Hogan held that the application for leave to challenge the constitutionality would be granted. The Court observed that the substantial grounds for leave had been made out by the applicant. The Court observed that a deportation order of potentially indefinite duration infringed art. 8 of the ECHR.

1 1. In these judicial review proceedings the applicants seek to challenge a decision made by the Minister on or about the 4 ^th November, 2011, as refused to revoke a deportation order previously made in respect of the fourth named applicant, Davit Arabuli. It is fair to say the principal ground advanced in this leave application is that s. 3 of the Immigration Act 1999 ("the Act of 1999") is unconstitutional in that it imposed - in principle at least - a lifelong ban on the person to whom the deportation order was addressed. It is contended that a ban of this kind amounts to a disproportionate interference with the applicants' right to family life under Article 41 of the Constitution. For good measure the applicants further seek a declaration of incompatibility pursuant to s. 5(2) of the European Convention on Human Rights Act 2003. in respect of s. 3(1) of the Act of 1999, in that it is contended that this subsection by allowing for a deportation order of indefinite duration violates the applicant's right to family life under Article 8 of the European Convention on Human Rights.

2 2. These are obviously important and significant issues which I will consider presently. It is, however, first necessary to set out the rather complex facts of this case before proceedings to consider the major issues which the applicants now seek to raise.

3 3. The fourth named applicant, Mr. Arabuli, is a Georgian national who entered the State in early 2001. Mr. Arabuli made two applications for asylum using different aliases including the name, Datia Toidze. Mr. Arabuli did not turn up to a scheduled interview and his asylum application was refused. The Minister gave notice of his intention to deport pursuant to s. 3(9) of the Act of 1999, but no submissions were made in response in respect of the Minister's proposal. The Minister made a deportation order on the 5 December, 2001, and Mr. Arabuli was instructed to report to the Garda National Immigration Bureau on the 14 ^th December, 2001, in respect of that order. He failed to do so and was thereafter classified as an evader.

4 4. Nothing further was heard from Mr. Arabuli until April, 2003 when Mr. Arabuli was transferred back from Iceland to Ireland pursuant to the terms of the Dublin Convention. Mr. Arabuli had travelled to Iceland using a forged Spanish passport, availing of another alias in the process.

5 5. Mr. Arabuli was thus returned to Ireland in April, 2003. Mr. Arabuli was required to present thereafter at regular intervals to Garda National Immigration Bureau. While the Bureau made many efforts to give effect to the earlier deportation order from December 2001, this all proved unavailing. Remarkable as it may seem, Mr. Arabuli was physically resident in the State from April, 2003 until November, 2011, while presenting at all times under the name of his alias. Datia Toidze. During this period Mr. Arabuli had been interviewed by immigration officers from the Georgian Embassy in London on three separate occasions, but it is clear that he endeavoured to frustrate their attempts to ascertain his true identity.

6 6. In 2003 following his transfer from Iceland, Mr. Arabuli met a fellow Georgian national, the first named applicant, Ms. Lela Sivsivadze. She was born in October 1986 and was seventeen on her arrival in Ireland. They became good friends and a romantic relationship followed. Their first child, Sofia, was born in the State on 16 ^th April, 2005. and she is now seven years old. The couple's second child, Mariam, was born on the 13 ^th August, 2009. The couple married on the 14 ^th July, 2009. Although I shall return presently to say something further about the family members, it should be noted that the two children are not Irish citizens.

7 7. In October, 2008 Mr. Arabuli applied to the Minister to revoke his deportation order. This deportation order was affirmed by the Minister on the 17 ^th June, 2009.

8 8. A further application pursuant to s. 3(11) was made on the 27 ^th July, 2010. In this application Mr. Arabuli stated that he was Mr. Toidze and that he had married Ms. Sivsivadze on the 14 ^th July, 2009. A copy of the marriage certificate was enclosed, albeit that his marriage certificate referred to him in his true name, that of Mr. Arabuli. Birth Certificates for Mariam and Sofia were enclosed. A number of references were supplied in support of the application all referring to Mr. Arabuli in the name of Mr. Toidze. Ms. Sivsivadze also wrote a personal letter to the Minister referring to her husband as Mr. Toidze requesting that he should be allowed to stay in the State. This s. 3(11) application was examined on the 11 ^th October, 2011, and the deportation order was affirmed on...