Sivsivadze v Minister for Justice

 
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[2015] IESC 53

THE SUPREME COURT

Murray, J.

Hardiman J.

O'Donnell J.

Clarke J.

MacMenamin J.

[Appeal No. 402 & 403/12]

Between
Lela Sivsivadze, Sofia Arabuli, Mariam Toidze (Minors Suing by their Mother and Next Friend, Lela Sivsivadze) and Davit Arabuli)
Plaintiffs/Appellants
and
Minister for Justice and Equality, Attorney General and Ireland
Respondents

402 & 403/2012 - Murray Hardiman O'Donnell Clarke MacMenamin - Supreme - 23/6/2015 - 2015 IESC 53

Immigration – Constitutional law – Human rights – Appellant seeking a declaration that s.3(1) of the Immigration Act 1999 is unconstitutional – Whether appeal should be dismissed by reason of abuse of process

Facts: The first appellant, Ms Sivsivadze, is the wife of the fourth appellant, Mr Arabuli, and both are the parents of two children, the second and third appellants (Ms Arabuli and Ms Toidze). The fourth appellant arrived in Ireland in 2001 and having failed in an asylum application an order for his deportation was made in December, 2001. It was not until November, 2011 that effect was given to that order when he was returned to his country of origin, Georgia. The appellants applied to the High Court for (a) a declaration that s.3(1) of the Immigration Act 1999 is unconstitutional and (b) a declaration pursuant to s.3(1) of European Convention on Human Rights Act 2003 that s.3(1) of the 1999 Act is incompatible with Ireland's obligations under the Convention. The High Court refused their application and the appellants appealed to the Supreme Court against that decision. The appellants” case was an attack generally on the constitutionality of s.3(1) itself or in conjunction with subsection 11 of the same section and not on any individual decision of the first respondent, the Minister for Justice and Equality. Although these proceedings started out as judicial review proceedings they were ultimately sent for plenary hearing on the constitutional issue. The constitutionality of s.3(1) was put in issue because of what is alleged is the requirement of the section that a deportation order have effect for an indefinite period of time without any specified limitation; thereby every deportation order actually or potentially has a disproportionate and unconstitutional interference with the rights of the family and the right to a family life as guaranteed by the Constitution. Although no particular order or decision of the Minister was in issue by way of judicial review the appellants relied on their particular factual circumstances and the impact of the deportation on their family life in support of their contention that a deportation order made in accordance with s.3(1) will have adverse effects on deportees who have a family life in Ireland to an extent incompatible with the provisions of the Constitution. In addition, it was submitted by the appellants that s.3(1) is incompatible with Art. 15 of the Constitution as constituting an unlawful delegation of legislative powers in the absence of a sufficient statement of principles and policies in the legislation governing how the Minister should exercise his power to make a deportation order. The claim for a declaration of incompatibility pursuant to s.5 of the 2003 Act was an alternative one to the constitutional issues. The respondents submitted that the appellants should be denied any reliefs in these proceedings by reason of the first appellant”s egregious abuse of the asylum system and the processes of the Court in conjunction with the fourth appellant”s abuse of the process of the Court as already found in the High Court proceedings.

Held by Murray J that the appeal should not be dismissed by reason of the abuse of process by two of the appellants, having regard to the objective constitutional interests involved, including those of the minor children, and the fact that it involves a challenge to the constitutionality of a provision of an Act of the Oireachtas. Murray J held that the proposition advanced on behalf of the appellants that the deportation order of the nature made in respect of the fourth appellant constituted an administrative sanction was not sustainable. Since there was nothing in s.3(1), 3(11) or the Act itself restricting any constitutional obligation of the Minister to exercise his discretion proportionately in the circumstances of any individual case, Murray J held that it could not be said that those provisions are unconstitutional because they would necessarily involve an adverse impact on family rights (or otherwise) as guaranteed by the Constitution. Murray J was satisfied that s.3(11) is not in conflict with Article 15 of the Constitution, citing TC v Minister for Justice, Equality and Law Reform [2005] 4 IR 109. Murray J found it to be clear that there is nothing in the sections themselves nor in the Act which would restrict the Minister, when making a decision under either subsection, from fully taking into account the Article 8 rights of the family directly affected by a deportation order or a refusal to revoke one, in accordance with the principles laid down in the European Convention. In those circumstances Murray J held that it cannot be said that s. 3(1) or s. 3(11) are incompatible with the obligations of the State under the Convention. Accordingly, that relief was refused.

Murray J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice John Murray delivered the 23rd day of June, 2015
1

This is an appeal by the appellants against the decision of the High Court (Kearns P) refusing their application for (a) a declaration that section 3(1) of the Immigration Act, 1999 is unconstitutional and (b) a declaration pursuant to section 3(1) of European Convention on Human Rights Act, 2003, as amended, that s.3(1) of the Act of 1999 is incompatible with Ireland's obligations under the Convention.

2

The first named appellant is the wife of the fourth named appellant and both are the parents of two children, the second and third named appellants. The fourth appellant arrived in this country in 2001 and having failed in an asylum application an order for his deportation was made in December, 2001. It was not until November, 2011 that effect was given to that order when he was returned to his country of origin, Georgia. The background facts and circumstances relating to the appellants are explained in greater detail below.

3

It is relevant to emphasise at this point that the appellant's case is an attack generally on the constitutionality of section 3(1) itself or in conjunction with subsection 11 of the same section and not on any individual decision of the Minister. Although these proceedings started out as judicial review proceedings they were ultimately sent for plenary hearing on the constitutional issue. As is evidence from the agreed issue paper and the submissions of the parties the constitutionality of section 3(1) is put in issue because, what is alleged is the requirement of the section (set out in paragraph 5 below) that a deportation order have effect for an indefinite period of time without any specified limitation. Thereby every deportation order actually or potentially has a disproportionate and unconstitutional interference with the rights of the family and the right to a family life as guaranteed by the Constitution. Although no particular order or decision of the Minister is in issue by way of judicial review the appellants do rely on their particular factual circumstances and the impact of the deportation on their family life in support of their contention that a deportation order made in accordance with section 3(1) will have adverse effects on deportees who have a family life in this country to an extent incompatible with the provisions of the Constitution. In addition, or alternatively, it is submitted on behalf of the appellants that section 3(1) of the Act is incompatible with Article 15 of the Constitution as constituting an unlawful delegation of legislative powers in the absence of a sufficient statement of principles and policies in the legislation governing how the Minister should exercise his power to make a deportation order. The claim for a declaration of incompatibility pursuant to s.5 of the European Convention on Human Rights Act, 2003 is an alternative one to the constitutional issues.

Other Issue
4

When this appeal first came on for hearing a serious discrepancy was noted between the date of birth and age which the first appellant claimed when she arrived in this country in 2003 from Georgia and what appeared to be her real dated of birth, as appeared from an affidavit sworn by her 10 days or so before the matter first came on for hearing on 26th January, 2015. That hearing was adjourned and the first appellant directed to file a further affidavit setting out in detail why she had falsely claimed to be an unaccompanied minor of 16 years when she first arrived in this country and applied for asylum. She was directed to file a further affidavit explaining this discrepancy and giving all relevant facts and circumstances. In the event she subsequently filed an affidavit which showed that the story which she had relied upon in the asylum process and in various proceedings before the courts was a concoction and a tissue of lies. This is referred to in more detail below. It is mentioned at this point in order to indicate that the respondents in the appeal have also submitted that the appellants should be denied any reliefs in these proceedings by reason of the first appellant's egregious abuse of the asylum system and in particular abuse of the processes of the Court in conjunction with the fourth appellant's abuse of the process of the Court as already...

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