U.M. (Pakistan) v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 19 November 2019 |
| Neutral Citation | [2019] IEHC 811 |
| Docket Number | [2019 No. 394 J.R.] |
| Court | High Court |
| Date | 19 November 2019 |
[2019] IEHC 811
THE HIGH COURT
JUDICIAL REVIEW
Richard Humphreys
[2019 No. 394 J.R.]
Deportation order – Order of certiorari – Revocation – Applicant seeking certiorari of refusal to revoke deportation order – Whether the manner in which the respondent proceeded to refuse to revoke the deportation order made in respect of the applicant was unlawful and breached fundamental principles of fair procedures and due process
Facts: The applicant arrived in the State from Pakistan on 17th June, 2011 and sought asylum. That application was refused by the Refugee Applications Commissioner on 7th September, 2011. An appeal to the Refugee Appeals Tribunal was dismissed. The applicant then made submissions pursuant to s. 3 of the Immigration Act 1999 on 28th March, 2012 and applied for subsidiary protection. The latter application was also refused, and a deportation order was made on 30th August, 2012. The applicant then evaded his presentation requirements for a period of six years. In the meantime, he entered into a relationship with an EU citizen. A child of that relationship was born on 14th January, 2016. The relationship broke up but the applicant had the benefit of an order of the District Court giving him some limited access to the child. On 4th July, 2018, the applicant’s solicitors applied for revocation of the deportation order under s. 3(11) of the 1999 Act. In August, 2018 the applicant presented to the GNIB for the first time since the making of the deportation order. On 10th May, 2019 the revocation application was refused. The applicant was then arrested on 8th June, 2019 and deported to Pakistan on 13th June, 2019. The High Court (Humphreys J) granted leave on 29th July, 2019, the primary relief sought being certiorari of the refusal to revoke the deportation order. The applicant contended the following: (1) the manner in which the respondent, the Minister for Justice and Equality, proceeded to refuse to revoke the deportation order made in respect of the applicant was unlawful and breached fundamental principles of fair procedures and due process; (2) the Minister failed to have any or any sufficient regard to the particular representations made on the applicant’s behalf as to why that deportation order should be revoked pursuant to s. 3(11) of the 1999 Act; (3) the Minister’s considerations failed to have sufficient regard to the applicant’s changed circumstances and instead focused excessively on the fact that the applicant had been classified as an evader and had failed to engage with the immigration authorities in respect of the deportation order of which he was the subject for a period of almost six years; (4) once representations from the applicant had been received pursuant to s. 3(11) of the 1999 Act, it was thereafter incumbent upon the Minister to consider those representations; and (5) the Minister failed to have adequate regard to the fact that the applicant was the parent of a Union citizen child and to properly and fully consider the best interests of that child, which must be a primary consideration in the context of the application pursuant to s. 3(11) of the 1999 Act.
Held by Humphreys J that: (1) no breach of fair procedures or due process occurred; (2) lack of narrative discussion does not amount to non-consideration where the decision indicates that submissions have been considered, in the absence of evidence of such non-consideration; (3) the applicant’s evasion and lack of engagement was a relevant factor and the fact that the Minister gave that significant weight did not make the decision unlawful; (4) the Minister was required to consider all relevant matters, not simply those favourable to or emphasised by the applicant; and (5) best interests being a primary factor is not equivalent to saying they are automatically a decisive factor.
Humphreys J held that the application would be dismissed.
Application dismissed.
The applicant arrived in the State from Pakistan on 17th June, 2011 and sought asylum. That application was refused by the Refugee Applications Commissioner on 7th September, 2011. An appeal to the Refugee Appeals Tribunal was dismissed. The applicant then made submissions pursuant to s. 3 of the Immigration Act 1999 on 28th March, 2012 and applied for subsidiary protection. The latter application was also refused, and a deportation order was made on 30th August, 2012. The applicant then evaded his presentation requirements for a period of six years. In the meantime, he entered into a relationship with an EU citizen. A child of that relationship was born on 14th January, 2016. The relationship broke up but the applicant has the benefit of an order of the District Court giving him some limited access to the child.
On 4th July, 2018, the applicant's solicitors applied for revocation of the deportation order under s. 3(11) of the 1999 Act. In August, 2018 the applicant presented to the GNIB for the first time since the making of the deportation order. On 10th May, 2019 the revocation application was refused. The applicant was then arrested on 8th June, 2019 and deported to Pakistan on 13th June, 2019. I granted leave in the present proceedings on 29th July, 2019, the primary relief sought being certiorari of the refusal to revoke the deportation order. Helpfully, the applicant's counsel is not pressing the claim for damages or indeed asking for a mandatory order.
A statement of opposition was filed on 18th October, 2019 and I have now received helpful submissions from Mr. Gavin Keogh B.L. for the applicant and from Ms. Sarah K.M. Cooney B.L. for the respondent. Ms. Cooney very generously acknowledged that the respondent's opposition papers and written submissions had been drafted by Mr. John P. Gallagher B.L. prior to her involvement in the case.
The context here is that of an attempt to revoke an existing decision, in which situation the court has a somewhat more limited role than the role it has in a challenge to an original adverse decision: see C.R.A. v. Minister for Justice, Equality and Law Reform [2007] IEHC 19 [2007] 3 I.R. 603 per MacMenamin J. If the focus is normally in practice on the extent of the change in circumstances since the original order, here the birth of the...
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