V.M.M v Minister for Justice, Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 08 June 2017 |
| Neutral Citation | [2017] IEHC 404 |
| Docket Number | [2017 No. 480 J.R.] |
| Court | High Court |
| Date | 08 June 2017 |
[2017] IEHC 404
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2017 No. 480 J.R.]
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AS AMENDED
AND
Asylum, Immigration & Nationality – S.5 of Illegal Immigrants (Trafficking) Act 2000 – S. 3(11) of the Immigration Act, 1999 – Grounds for Judicial Review – Fraud – Amendment of deportation order – Whether notice to applicant was required for amendment of deportation order
Facts: The applicants sought leave to apply for judicial review pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000, and the first applicant sought a stay on his deportation order on the ground that the respondent had failed to take into consideration the detrimental effect of the said order on the family and children of the first applicant. The first applicant contended that the respondent had made amendment in the original deportation order issued against the first applicant without giving him any notice of that change, which was to the effect of correction of the name of the first applicant. The applicant submitted that he needed to take care of his children who would be deprived of their fundamental right to grow in the custody of the first applicant, in case the first applicant was to be deported. The respondent contended that the first applicant had a history of breaching the immigration laws of the State and was aware of his precarious immigration status at the time of the marriage of the first applicant with the second applicant. It was submitted by the respondent that the applicant had committed fraud by submitting a fake name and nationality in an earlier asylum application.
Mr. Justice Richard Humphreys refused the applicants' application for leave to apply for judicial review and for a stay on the deportation order. The Court held that the respondent was not under any obligation to provide notice to the first applicant for making any amendment in the deportation order. The Court noted that the respondent had appropriately weighed all the factors before making the said correction and favouring the deportation of the first applicant. The Court held that the first applicant must establish that his case was arguable before asking for a stay on his deportation. The Court held that there were no substantial grounds that warranted the grant of the stay.
What is before the court is an ex parte application for leave pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and an application for an injunction restraining the removal from the State of the first named applicant.
The first named applicant and his wife, the second named applicant, are nationals of South Africa. The wife has been present legally in Ireland since 2002. The husband arrived in 2008 and sought asylum under a false name and a false Zimbabwean nationality. That application was refused by the Refugee Applications Commissioner and appealed unsuccessfully to the Refugee Appeals Tribunal.
In February 2011, the husband left the State. A deportation order was made against him in the false name on 25th December, 2014. The parties then married on 13th August, 2015, after the deportation order. In the meantime, the husband had come to Ireland and left in accordance with the limited period allowed for entry without a visa. He then returned on a more long term basis on 28th November, 2015, and applied for permission to remain to join his spouse. That permission was granted on 28th July, 2016, but in the process of taking his fingerprints for the purpose of processing that permission, it emerged that he previously had been the subject of a deportation order in a different name.
The husband then made a s. 3(11) application on 25th August, 2016. By letter dated 3rd March, 2017, the husband was notified that that application had been refused but that in exercise of the powers under s. 3(11) the Minister was instead amending the deportation order to include the husband's correct name as an alias, alongside the incorrect name.
On 13th May, 2017, the husband made a second s. 3(11) application complaining, inter alia, that the amendment was made without notice to the husband and that the husband was the primary carer of the children of the family and that the deportation would have an adverse impact on the family and the rights of the members of that family.
The statement of ground sets out seven reliefs. They are as follows:-
(a) ‘ Leave to apply for judicial review under s. 5 of the Illegal Immigrants (Trafficking) Act 2000’ which in effect is a broad heading for the remaining items, as we are dealing at this point with the application for leave and then the injunction.
(b) ‘ An order extending time for bringing the proceedings.’ Ms. Teresa Blake, S.C., who appears with Mr. Geoffrey Nwadike, B.L., for the applicants, accepts that the application is out of time. I will assume without deciding that there are grounds for extending time, and will proceed to consider the application on that basis.
(c) ‘ An order of certiorari quashing the decision of the respondent, dated 3rd March, 2017, amending the deportation order issued on 25th September, 2014, in circumstances where no notice of the intention to amend was given to the applicant nor the opportunity to comment on it.’ An order under s. 3(11) of the Immigration Act 1999, is an order that is specifically subject to s. 5 of the 2000 Act, so substantial grounds for that relief are required for the purposes of granting leave.
(d) ‘ An order of mandamus requiring the respondent to consider the additional evidence submitted on behalf of the first named applicant by letters dated 13th May, 2017, in respect of his application and to make a decision in accordance with law and in respect of the same.’ It seems to me there are no arguable grounds for that relief. There is no basis to suggest that the Minister will not in due course consider the second s. 3(11) application lawfully and it is simply not appropriate to seek mandamus a couple of weeks after making an application. It is not a relief that could ever be granted under these circumstances, so I reject the notion that there are grounds for leave to seek relief (d).
(e) Relief (e) is an injunction which I will come to in due course.
(f) Reliefs (f) and (g) seek further and other relief and costs.
The primary issue therefore is whether there are substantial grounds for certiorari of the s. 3(11) order.
The first three paragraphs of the statement, under the heading of grounds, are factual narrative, as is the next paragraph under the heading of first revocation application, as are the next two paragraphs under the heading of amendment of deportation order, sub paragraphs (a) to (i) of which are introduced by the phrase ‘ The procedure engaged...
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