Sivsivadze v Minister for Justice
 IESC 53
THE SUPREME COURT
[Appeal No. 402 & 403/12]
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
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.
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.
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.
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 found in the High Court proceedings by the learned President.
Section 3(1) of the Immigration Act, 1999 provides:-
‘Subject to the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as ‘a deportation order’) require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State.’
Section 3(11) provides:-
‘The Minister may by order amend or revoke an order made under this section including an order under this subsection.’
Section 2 of the European Convention on Human Rights Act, 2003 provides that:-
‘In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.’
Section 5 of the European Convention on Human Right Act, 2003 provides:-
‘In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration… that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.’
Section 5 of the Immigration Act, 2004 contains provisions concerning the presence of non-nationals in the State and provides as follows:-
‘(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.
(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.’ [relevant provisions]
The respondent has submitted that in the circumstances which prevail in the present case, namely where a party, through deceit and making untruthful statements under oath, has abused the process of the court, this Court has a discretion to deny any relief to such applicants and to strike out the proceedings.
Before going on to outline the essential background facts of the case, I think it would be useful at this point to refer to the locus standi of the parties in order to place the foregoing issues in context. Some discussion on this point occurred during the hearing, although the respondents did not assert that the appellants do not have locus standi to challenge the constitutionality of s.3 of the Act of 1999. I think this is a correct approach, all of the appellants being objectively affected by the application of s.3 by virtue on the deportation order which applies to the father in the family. In particular, there is a continuing interest in its application, if only because the fourth named appellant has the right to apply in the future under subs. (11) of s.3 for a revocation of the deportation order in question. The objective fact that all the appellants are affected by the deportation order and continue to be so affected, relates to facts that are not in controversy between the parties.
It would also be as well to state at this point, that in this appeal there is no issue concerning the validity of the deportation order as such, as made by the Minister in December, 2001 in respect of the fourth named appellant. The validity of that order had been challenged in judicial review proceedings brought in November 2011, on the grounds that his deportation disproportionately interfered with his family and private life. The application for such relief was dismissed in the judicial review proceedings and not appealed from. An issue concerning the constitutionality of s. 3 of the Act of 1999 had also been raised in the judicial review proceedings. As a matter of principle, parties are not permitted to use judicial review proceedings for the purposes of challenging the constitutional validity of an Act of the Oireachtas...
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