De Souza v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 July 2019
• Neutral Citation: [2019] IEHC 543
• Docket Number: [2019 No. 76 J.R.]
• Court: High Court
• Date: 15 July 2019

[2019] IEHC 543

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

(No. 2)

Leave to appeal – Point of law of exceptional public importance – Deportation order – Applicants seeking leave to appeal – Whether the applicants had raised a point of law of exceptional public importance

Facts: The High Court (Humphreys J), in De Souza v Minister for Justice and Equality (No. 1) [2019] IEHC 440, dismissed a challenge to a deportation order against the first applicant, Mr de Souza. The applicants sought leave to appeal. Their written submissions stated a first issue at para. 13: “It is respectfully submitted that it is a point of law of exceptional public importance and desirable in the public interest to clarify whether in circumstances where the evidence specified in Regulation 5(2) has been provided to the respondent [the Minister for Justice and Equality] there is an obligation to process such an application or allow it to be processed by a different section within the Minister’s (sic) office in advance of making a deportation order as against such an applicant and/or deporting him.” Paragraph 23 of the written submissions stated: “It is respectfully submitted that it is a point of law of exceptional public importance and desirable in the public interest to clarify whether in circumstances where the first named applicant has been in a relationship with the second named applicant [Ms Langovska] for a period of over 5 years and the minister has been provided with evidence of this whether there is any obligation to consider the first named applicants’ article 8 rights in this regard and/or whether the consideration of article 8 rights is sufficient.” Paragraph 27 of the applicants’ written submissions stated: “It is respectfully submitted that it is a point of law of exceptional public importance and desirable in the public interest to clarify whether in circumstances where the first named applicant’s presence in the State was tolerated by the respondent Minister for a period of over five years during which he developed a private/family life in the State whether there is any obligation to carry out a proportionality assessment on the effect a deportation order will have on the private/family life he had developed in the State.”

Held by Humphreys J that, regarding the first question, it is not too much to ask that an applicant should make the appropriate application if he or she wants it considered. He held that the premise of the second question was incorrect insofar as it implied that art. 8 of the ECHR as applied by the European Convention on Human Rights Act 2003 was not considered; it was (paras. 11 to 14 of the No. 1 judgment). Furthermore, he noted that it is established law that deportation of an unsettled migrant breaches art. 8 of the ECHR only in exceptional circumstances; there were no such circumstances in this case. He noted that, regarding the third question, the point about toleration as such was not pleaded in the statement of grounds so the applicants could not expect leave to appeal on that point. He dealt with the argument raised about toleration at para. 17 of the No. 1 judgment, noting that while the first applicant was not actually deported for a number of years after the making of the deportation order, this did not amount to toleration.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of July, 2019

1 In De Souza v. Minister for Justice and Equality (No. 1) [2019] IEHC 440 [2019] 6 JIC 0407 (Unreported, High Court, 4th June, 2019) I dismissed a challenge to a deportation order against the first named applicant. The applicants now seek leave to appeal and I have received helpful submissions from Mr. Colm O'Dwyer S.C. (with Mr. Ciaran Doherty B.L.) for the applicants and from Ms. Sarah-Jane Hillery B.L. for the respondent.

2 The law in relation to leave to appeal has been set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), and I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke...