De Souza v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 June 2019
• Neutral Citation: [2019] IEHC 440
• Docket Number: [2019 No. 76 J.R.]
• Court: High Court
• Date: 04 June 2019

[2019] IEHC 440

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2019 No. 76 J.R.]

BETWEEN

DIOGO DE SOUZA

AND

VIKTORIJA LANGOVSKA

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Deportation order – EU Treaty Rights – Applicant seeking certiorari of a deportation order – Whether the respondent should have considered the applicant’s EU Treaty Rights

Facts: The first applicant, Mr de Souza, sought certiorari of a deportation order. He complained that the respondent, the Minister for Justice and Equality, should have considered his EU Treaty Rights under Directive 2004/38/EC, and in effect under the European Union (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015). He alleged that, further or in the alternative, the respondent failed to carry out a lawful (or any) analysis of his right to respect for his family and private life in the State under Article 8 of the European Convention on Human Rights. He complained that the respondent erred in law and fact, and/or made and relied on a finding which had no sound evidential basis in finding that the decision to deport him does not constitute an interference with his right to respect for his family life under Article 8. He alleged that the respondent erred in law and fact, and/or made and relied on a finding which had no sound evidential basis, by holding that his employment prospects were limited in light of the low levels of unemployment in the State as well as the fact that he had provided payslips and evidence of employment and employment prospects.

Held by the High Court (Humphreys J) that the procedure for applying for permission based on EU Treaty Rights is set out in the 2015 regulations and that was simply not activated by the applicants prior to the making of the deportation order, so that order simply cannot be invalid on that account. Humphreys J held that the first applicant was at all material times an unsettled migrant and it is well-established that deportation breaches Article 8 only in exceptional circumstances. Humphreys J held that no such circumstances had been demonstrated. In the context of the first applicant’s status as an unsettled migrant, Humphreys J held that it was legitimate for the Minister to decide that a proportionality exercise was unnecessary. Humphreys J held that there must be a wide margin of appreciation for the Minister to assess issues such as employment prospects, and certainly no clear unlawfulness had been shown.

Humphreys J held that the proceedings were totally misconceived and would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of June, 2019

1 The first-named applicant's mother, Nilzene Rosa De Souza, arrived in the State on 30th July, 2007 on a one-month visitor's permission, and unlawfully overstayed thereafter. Her brother, the first-named applicant's uncle, and the brother's wife, had permission to live in the State at the time and indeed since.

2 The first-named applicant was born in Brazil in 1992 and entered the State at the age of fifteen on 10th March, 2008, along with his brother and his father. No visa was granted to him so it is to be assumed that he entered on the basis of a 90-day permission as a tourist. Such permission is conditional on the entrant being a genuine tourist. It does not appear that the first-named applicant's entry was in fact lawful because there is no indication that, at the time, he had an actual intention to return home within the 90 days, but in any event he never got permission thereafter. The father returned to Brazil in 2009 and he and the mother appear to have divorced since then.

3 The first-named applicant was served with notice of intention to deport on 17th April, 2013, and submissions were then made in response to that as envisaged by s. 3 of the Immigration Act 1999. The first-named applicant and the second-named applicant, a national of Latvia, claim to have been in a relationship since 2014.

4 There was then some lapse of time in progressing the first-named applicant's deportation and in January, 2018, the Minister sought further information in relation to the application for leave to remain. Further correspondence then ensued, including further information being provided about the relationship between the applicants.

5 No application for permission to remain in the State on the basis of the free movement directive 2004/38/EC was made by the first-named applicant prior to the making of a deportation order which occurred on 10th December, 2018. The first-named applicant was notified of that order on 17th January, 2019. Only after that, on 7th February, 2019, did it occur to the first-named applicant to make an application pursuant to the directive. That application was refused on 8th May, 2019.

6 The first-named applicant also responded to the deportation order by immediately making an application for revocation of the order pursuant to s. 3(11) of the 1999 Act on 8th February, 2019. While not yet decided, a revocation application is of course not suspensive. Not for the first time one can wonder about the unreality of a reflexive, immediate, application for revocation of an adverse decision. The attitude almost appears to be that adverse decisions mean nothing and indeed are almost welcome because they open up a second front. They allow an applicant such as this one to bring judicial review against the adverse decision and simultaneously to seek immediately to revoke that decision with the implied prospect of the cycle repeating itself ad nauseam if a further adverse decision is made.

7 The applicant's mother and brother also had deportation orders issued against them on 10th January, 2019. The present proceedings were filed on 8th February, 2019, the primary relief sought being certiorari of the deportation order. Leave was granted on 11th February, 2019 and an interim stay was placed on the deportation of the first-named applicant. The applicants' assert in submissions that the stay was continued pending a termination of proceedings but the respondent doesn't accept that such an order was actually made and indeed the perfected orders back up his position. A statement of opposition was filed...