DE v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2016
• Neutral Citation: [2016] IEHC 650
• Date: 14 November 2016
• Court: High Court
• Docket Number: [2016 No. 678 J.R.]

[2016] IEHC 650

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 678 J.R.]

BETWEEN

D.E. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A.E.)

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Illegal stay in the State – Validity of deportation orders – Duty of disclosure of statutory scheme – Judicial review

Facts: The key issue in the present proceedings filed by the first named applicant/minor in relation to a deportation order made against him was as to whether the impugned order was liable to be quashed on the basis of lack of transparency in the concerned residency scheme. The first named applicant, through his mother/ being the second named applicant, argued that since the policy for granting resident status to the working group was in force, the respondent was under an obligation to provide update to the first named applicant in that regard.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the first named respondent was not required to provide full statement of the concerned policy and its implementation. The Court held that the first named applicant's rights under art. 8 of ECHR could not be invoked as the first named applicant was present in the State without lawful permission and thus, he possessed minimal or no such rights.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2016

1 The applicant is a seven year old boy of Nigerian parentage who was born in the State. He has sickle cell disease with a particular severity.

2 His mother arrived in Ireland on 23rd January, 2009. The applicant was born on 26th March, 2009. A deportation order was made against him on 1st July, 2011.

3 A first judicial review application [2011 No. 637 J.R.] was brought against this order. In D.O.E. v. Minister for Justice and Equality [2012] IEHC 100 (Unreported, High Court, 1st March, 2012) Cross J. refused leave to apply for judicial review of the deportation order on the basis that there were no substantial grounds to challenge it due to a lack of evidence of there being exceptional circumstances which would permit the applicant to remain in the State to avail of medical treatment.

4 Between 14th June, 2012, and 22nd July, 2014, the applicant's mother (and by necessary extension the applicant, albeit that he was not responsible) evaded the GNIB.

5 In the meantime an application to revoke the deportation order had been made, which was refused on 8th July, 2014. A second set of judicial review proceedings [2014 No. 526 J.R.] was brought against that refusal.

6 On 24th November, 2014, MacEochaidh J. struck out the second judicial review application on the grounds of mootness because an up-to-date medical report had been submitted which was treated by the department as a second s. 3(11) application. On 29th July, 2016, the second s. 3(11) refusal was issued. That gave rise to the present proceedings, the third judicial review in the matter. The leave application was opened on 23rd August, 2016, and an interim injunction granted by Murphy J.

7 The substantial grounds test applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and I have had regard to the law in relation to that test including McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 as approved in In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 at 395.

Are there substantial grounds to challenge the refusal to revoke the deportation order on the grounds of a lack of transparency in the alleged residency ‘scheme’?

8 Mr. Michael Conlon, S.C. (with Mr. Paul O'Shea, B.L.) in an able argument on behalf of the applicant submits that arising from the report of the Working Group on the Protection Process an informal scheme has been put in place by the Government generally aimed at giving permission to large numbers of illegal immigrants who have been present in the State for more than five years. The working group recommendation on regularising long-term illegals came encumbered with a number of recommended conditions, including that the individuals had not been evading, and it appears from material prepared by the Minister that the department is now ‘ seeking to identify individual cases where the recommendations [of the working group] might apply’.

9 Mr. Conlon relies on R. (Lumba) v. Secretary of State for the Home Department [2012] 1 A.C. 245 at paras. 34 – 39, where Lord Dyson states that ‘[t] he rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised’, a statement made in the context of a case about detention.

10 It seems to me that as a general proposition of law to be applied to circumstances such as the present one, it is not apparent that there are substantial grounds for contending that such an approach is operative in the deportation context. There are many obvious reasons why there can be no enforceable legal requirement for the Minister to provide a full statement of the policy being adopted, still less are there substantial grounds for contending that the s. 3(11) decisions are invalid in the absence of such a statement.

11 It must be remembered that this is an applicant whose presence in the State is wholly irregular and unlawful. His challenge to the deportation order was dismissed at the leave stage. He has now had two attempts to revoke that order, the first of which was struck out. If...