Sujit Talukder v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 835
• Court: High Court
• Docket Number: RECORD NO. 2020/807JR

Between

Sujit Talukder

Applicant

and

The Minister For Justice

Respondent

[2021] IEHC 835

RECORD NO. 2020/807JR

THE HIGH COURT

Deportation – Statutory criteria – Employment – Applicant challenging a deportation order – Whether the respondent failed to appropriately apply the statutory criteria in relation to employment when considering the various personal factors identified in s. 3(6) of the Immigration Act 1999

Facts: The applicant, Mr Talukder, a Bangladeshi national, aged 29, came to Ireland when he was 18. He challenged a deportation order made in respect of him. The challenge was based on an alleged failure on the part of the respondent, the Minister for Justice, to appropriately apply the statutory criteria in relation to employment when considering the various personal factors identified in s. 3(6) of the Immigration Act 1999, as amended, and an alleged failure to provide adequate reasons for the decision.

Held by the High Court (Hyland J) that the reasons were adequate, in part because they were in the same form as those upheld in G.K. v Minister for Justice [2002] 2 IR 418 and in Meadows v Minister for Justice [2010] IESC 3. Hyland J concluded that the Minister failed to apply the statutory criteria relating to employment prospects in s. 3(6)(f) correctly by identifying the lack of permission of the applicant to work/remain as a negative counterweight to his employment prospects. Hyland J held that this had the effect of wholly undermining the statutory criteria identified under s. 3(6)(f) because a lack of permission to work/remain, if a permissible consideration under this factor, would always inevitably trump even the most glowing prospects of future employment of an applicant, notwithstanding that, in the words of Burns J in MAH v Minister for Justice [2021] IEHC 302, if a person had a work visa or a permission to remain in the State, a consideration pursuant to s. 3(6) of the 1999 Act would not arise in the first place.

Hyland J granted an order of certiorari of the deportation order of 16 September 2020 on the basis of the ground identified at paragraph 2 of the Statement of Grounds.

Application granted.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 21 December 2021

Introduction

1 This case concerns a challenge to a deportation order made in respect of a Bangladeshi national who came to Ireland when he was 18. He is now 29. The challenge is based on an alleged failure on the part of the Minister to appropriately apply the statutory criteria in relation to employment when considering the various personal factors identified in s.3(6) of the Immigration Act 1999 (“the 1999 Act”), as amended, and an alleged failure to provide adequate reasons for the decision.

2 I have concluded the reasons are adequate, in part because they are in the same form as those upheld in G.K. v Minister for Justice [2002] 2 IR 418. and in Meadows v Minister for Justice [2010] IESC 3. However, I conclude the Minister failed to apply the statutory criteria relating to employment prospects in s.3(6)(f) correctly by identifying the lack of permission of the applicant to work/remain as a negative counterweight to his employment prospects. This had the effect of wholly undermining the statutory criteria identified under s.3(6)(f). This is because a lack of permission to work/remain, if a permissible consideration under this factor, would always inevitably trump even the most glowing prospects of future employment of an applicant, notwithstanding that, in the words of Burns J. in MAH v Minister for Justice [2021] IEHC 302, if a person had a work visa or a permission to remain in the State, a consideration pursuant to s.3(6) of the 1999 Act would not arise in the first place.

Factual Background

3 The applicant is a citizen of Bangladesh who arrived in the State in December 2010 and shortly thereafter made an application for asylum which was refused. He appealed to the RAT and the negative first instance decision was affirmed. This was the subject of judicial review proceedings which resulted in the matter being remitted back to the RAT for a fresh consideration.

4 In the meantime, the applicant met and formed a relationship with a citizen of Hungary whom he married on 23 January 2014. The applicant was granted a residence card on the basis of this marriage on 14 August 2014.

5 In or around 18 September 2018 the applicant wrote to the Minister informing him that his wife had departed the State and that he could not be confident that she intended to return. In the intervening period the applicant's asylum claim had been re-heard before the RAT and was rejected in 2016 but no further steps arose in that regard as the applicant had been granted a residence card as identified above.

6 By letter dated 15 November 2018 the respondent wrote to the applicant informing him that, in light of the facts regarding his marriage, it was proposed to revoke his residence card. By letter dated 10 December 2018 the applicant, through his solicitor, replied, stating that he himself had brought the factual aspects of his marriage to the Minister's attention, that he accepted that his marriage had ended and that therefore he would not be making any representations regarding the revocation of his residence card.

7 Ultimately, the applicant's residence card was revoked on 13 August 2019 and a finding was made that he had contracted a marriage of convenience. The applicant's solicitors wrote stating that he rejected that finding and enquiring as to what further steps the Minister proposed to take. However, no appeal was taken by the applicant against that decision.

8 By letter of 17 October 2019 the applicant was issued with a proposal pursuant to s.3 of the 1999 Act as amended. On 14 November 2019, supplemented by way of a further letter of 19 December 2019, the applicant's solicitor made extensive representations on his behalf setting out, inter alia, the details of his immigration history, employment and integration in the State.

9 A deportation order was made in respect of the applicant on 16 September 2020 and he was informed of this under cover of letter dated 25 September 2020.

Procedural History

10 The applicant sought and was granted leave by Burns J. on 9 November 2020. The Statement of Grounds of 30 October 2020, grounded upon an affidavit of Mr. Talukder sworn 29 October 2020, identifies the following grounds at paragraphs 1 to 5;

• “1. The Minister failed to have sufficient regard to the specific representations made on the Applicant's behalf as to why a deportation order should not be made in respect of him. These representations related, inter alia, to the duration of time that he had resided in the State and his employment record whilst living here. The consideration lacked specificity and failed to take into account the full impact the making of a deportation order has on the Applicant.

• 2. In considering the Applicant's employment prospects, the Respondent noted the fact that the Applicant had been engaged in employment over an extensive period during which he had no permission to reside here. In breach of s. 3(6) of the Immigration Act, 1999, as amended the Respondent failed to arrive at any assessment of the Applicant's employment prospects in the event that he was permitted to remain in the State.

• 3. The Respondent's finding that he is not entitled to grant permission in order to enable a person to take up employment is an unlawful tautology that is devoid of logic.

• 4. The Respondent failed to give due weight to the duration of the Applicant's residence in the State and his age.

• 5. The Respondent failed to provide adequate reasons for his decision, and in particular for as regards the weight given to the matters listed in s.3(6) of the 1999 Act.”

11 At the hearing the applicant identified that the grounds at paragraphs 6 to 8 were not being proceeded with.

12 It seems to me that in substance the case can be divided into two parts. The first relates to the alleged failure on the part of the Minister to treat the applicant's employment record and prospects correctly, and to give adequate weight to his age, length of residence and the impact of refusal upon him. The second is a reasons argument i.e. that the respondent failed to provide adequate reasons for his decision. I will deal with those arguments in turn.

Employment Record of the Applicant and his Future Prospects

13 Section 3(6)(f) refers to the “ Employment (including self-employment) Prospects of the Person”. The entry in the examination of the file under this heading is as follows;

“Sujit Talukder states that his employment prospects are good because he has a strong work record in the State, a strong work ethic and good English-language skills.

Sujit Talukder is currently working in the State in a petrol station. However, Sujit Talukder does not have the permission of the Minister to reside or work in the State at this time and there is no obligation on the Minister to grant him permission to remain in the State in order to facilitate his employment/self-employment in this State.”

14 The applicant criticises this entry on the basis that there was a failure on the part of the Minister to discharge his obligation under s.3(6) to correctly assess the applicant's employment prospects. He also argues the Minister's observations in relation to permission to work and lack of obligation to grant leave to remain are an unlawful tautology devoid of logic. I am not sure if that latter argument is correct: one definition of a tautology is a phrase or expression in which the same proposition is repeated twice over in different words. The statement is not tautologous: rather the author of the document is making an observation that (a) the applicant has no permission to reside or work and (b) there is no obligation on the Minister to grant permission to remain to facilitate...