Facts:
The applicant was a Chinese citizen, who arrived in Ireland in 2001. He was married to a Chinese citizen, AL ([2014] IEHC 503), and they had a daughter, who was being raised in China. He was discovered by the Gardai to be living in Ireland without permission, which resulted in the issuing by the Minister for Justice of a proposal to deport him pursuant to s. 3 of the Immigration Act 1999. The proposal entitled him to leave the State voluntarily, to consent to the making of a deportation order, or to make representations for leave to remain temporarily in the State which, if not successful, would result in the making of a deportation order against him. He chose the latter course, and contended in his representations, made in 2012, that he had developed a private and family life in the State with his wife, relying on Article 41 of the Constitution and article 8 of the European Convention on Human Rights. He submitted that he and his wife had been living in Ireland for over ten years, and that they had social and family ties in the State. The following year, the Minister for Justice refused to grant him leave to remain and made a deportation order against him under s. 3 of the Act of 1999.
He challenged the Minister’s decision on the basis that his lack of entitlement to leave the State voluntarily without a deportation order being made against him immediately following his decision to refuse to grant him leave to remain, breached his right to make representations pursuant to Articles 40 and 41 of the Constitution, articles 8 and 13 of the European Convention on Human Rights, and the principle of proportionality. In support of his claim to remain on humanitarian reasons, he relied on the length of time he had spent in Ireland and his marriage. He also impugned the delay in deciding his application and contended that he should have been granted leave to remain on account of it.
Additionally, in his representations, the applicant contended that he employed five Irish citizens in his restaurant. In the examination of his representations, it was stated that the Department of Social Protection has advised the Minister that there were no employees linked to the restaurant and that no returns/contributions had been recorded with the Department. The applicant contended that this gave rise to a conflict of fact which the Minister was obliged to clarify, and that his failure to do so meant that the decision to make a deportation order was based on an error of fact and vitiated it.
The Minister contended that neither Article 41 of the Constitution nor article 8 ECHR conferred a right on non-nationals to enter and/or reside in the State. He submitted that no separation of the applicant from any of his family members was going to occur as a result of the making of the deportation order against him. Both the applicant and his wife had been in Ireland on an unlawful basis for a long number of years and, as such, Article 41 and article 8 ECHR were not engaged by the making of the deportation order, as the only issue before the Minister was the right of residence in the State and those articles did not confer any such right. The Minister submitted that the issue of proportionality did not arise, proportionality being a test to judge whether interference with rights was justified, and there being no interference with the applicant’s rights under either Article 41 or article 8 ECHR at all, as it was intended to deport him to China with his wife. Without prejudice thereto, the Minister submitted that, even if proportionality were an issue, legitimate immigration control would, in any event, justify the making of the deportation order.
Turning to the procedures pursuant to s. 3 of the Immigration Act 1999, the Minister submitted that because no constitutional or ECHR rights of the applicant were engaged as his family life and/or family rights would not be affected by his deportation, he was not in a position to point to any constitutional right which was breached by the alleged inadequacies in the section, and therefore lacked locus standi to challenge its constitutionality on the basis of such rights.
Without prejudice thereto, the Minister submitted that neither Article 41 of the Constitution nor article 8 ECHR prescribed any particular procedure by reference to which the rights they conferred were to be vindicated, and that Irish caselaw showed that the s. 3 procedure was adequate to respect and/or vindicate the rights in question.
Reasoning:
Of its own motion, the High Court referred in its decision to the Supreme Court’s decision in Dellway Investments v. National Asset Management Agency [2011] 4 I.R. 1, holding that it was authority for the proposition that a person who was or might be “affected” or “adversely affected” by a discretionary decision of a public body had a constitutional right to fair procedures, which encompassed the right to be heard. It therefore held that it was not necessary to establish that the decision to make a deportation order would affect legal or constitutional rights in order for the right to fair procedures to be triggered, and that the applicant accordingly did not have to show that he had family rights; rather, it was sufficient that he was a person who would be “affected” by the Minister’s decision under s. 3 of the Act of 1999. That being so, he had a constitutional right to fair procedures, including the right to make representations.
The court rejected the claim that there had been delay on the part of the Minister such that the applicant’s rights could only be vindicated by permitting him to remain in the State.
It held that there was no documentation showing that any returns or contributions had been made to the Department of Social Protection. It held that, even if there had been an error on the part of the Minister with regard to that matter, it was not sufficiently material or serious to vitiate the deportation order.
Turning to the substance of the case, it concluded that the applicant had a constitutional right to make representations to the Minister before he decided to make a deportation order against him. That right was reflected in s. 3 of the Act of 1999, which entitled him to make written representations to the Minister for leave to remain, which representations were considered by the Minister before making the deportation order. It held that that right was not impeded by the fact that a deportation order would be made if the representations for leave to remain were not successful. Whilst that might be a possible consequence of the making of representations, and whilst it might deter some persons from making them at all, it was not an unconstitutional or unlawful interference in the exercise of the right to make such representations.
Decision:
The court accordingly refused the relief sought by the applicant.
