Facts:
The first applicant was a Nigerian national. She arrived in Ireland and unsuccessfully claimed asylum, including her son, the second applicant, in her claim. They then applied unsuccessfully for subsidiary protection and leave to remain, following which deportation orders were made against them. After arriving in Ireland, she gave birth to a daughter, the third applicant. Applications for asylum and subsidiary protection were unsuccessfully made on her behalf, and she thereafter applied for leave to remain, which was refused, and a deportation order was made in respect of her.
When the first applicant received the letter of notification of the determination of the Minister on her application for subsidiary protection, which was dated the 1st March, 2010, it said that it had been determined that she and her son were eligible for subsidiary protection. This was contradicted by the contents of the enclosed analysis of the application. That their application had been unsuccessful was confirmed by the Minister in subsequent correspondence dated the 9th March, 2010. This prompted her solicitor to make a number of representations to the Minister in support of her application for leave to remain, beginning on the 9th March, 2010, but they were received after the signing of a deportation order in respect of her by the Minister, which had also occurred on the 9th March, 2010.
First of all, the first and second applicants contended that, as the error in the letter of notification had contributed to confusion as to their status, once the Minister received the additional representations in support of their application for leave to remain, he ought to have exercised his discretion to revoke the deportation orders under s. 3(11) of the Immigration Act 1999 and consider the additional representations along with the original ones as part of a new examination of whether he ought to make deportation orders against them.
Secondly, the applicants’ legal advisers also sought in their proceedings an order quashing the deportation order made in respect of the third applicant. The Minister contended that the court had no jurisdiction to deal with that, as the proceedings had predated the making of the order and had not been amended to include any particular ground of challenge to it.
Thirdly, the applicants sought to argue that they were entitled to seek the quashing of the deportation orders on the basis that the Minister’s analysis of the impact of deportation on their right to respect for their private life under article 8 ECHR was unlawful, relying on the decision of MacEochaidh J. in CI v. Minister for Justice [2014] IEHC 447.
The court decided to quash the deportation orders in respect of the first and second named applicants on foot of the first argument made by them.
Reasoning:
It held that their solicitor’s letter of the 9th March, 2010 had alerted the Minister to the contradiction between the contents of the notification letter and those of the enclosed analysis. It held that it was to be inferred from the available chronology that, at the time of the signing of the deportation orders, the Minister was aware that the first applicant had received a letter advising her that she was eligible for subsidiary protection. The conflict between the letter and the enclosed analysis was of sufficient weight as to put the Minister on enquiry as to the first applicant’s confusion as to her exact status between the 1st and the 9th March 2010, particularly when her solicitor, on the latter date and in response to the Minister’s letter clarifying that her subsidiary protection application had been unsuccessful, had alerted the Minister to the uncertainty surrounding her status and asked him, notwithstanding that, to grant her leave to remain.
The court held that, in those circumstances and in the interests of fairness, the Minister ought to have exercised his discretion pursuant to s. 3 (11) of the Act of 1999 to revoke the deportation orders he had signed and consider afresh the applicants’ application for leave to remain, including whatever other representations had been made by them or on their behalf by the time that reconsideration commenced. It rejected the Minister’s argument that, in the future, that would oblige him to revoke of his own accord deportation orders once representations were received after they were made but before they were notified. It emphasised that the basis for its decision that he ought to have revoked in the instant case was the existence of the error in the notification letter sent on the determination of the subsidiary protection application.
It said that, had the Minister revoked the orders of his own accord, his statutory obligation, upon commencement of his new determination, was to consider whatever representations were before him at the time of that reconsideration and no more. If he then went on to make deportation orders anew, any further representations as might have been received by him would not prompt fresh revocation of the orders and commencement of the process anew; they would instead fall to be treated as applications to revoke the orders, and the applicants would have to establish that they satisfied the requirements laid down in the decision of the Supreme Court in Smith v Minister for Justice [2013] IESC 4, namely that there were new and changed circumstances which ought to result in the deportation orders being revoked.
On the second point, the court rejected the objection made by the Minister, observing that the analysis underpinning the making of the deportation orders in respect of the first and second applicants had referred to the fact that the making of a deportation order had been recommended in respect of the third applicant.
Thirdly, the court took the view that, although the pleadings left a lot to be desired, the applicants’ statement of grounds had raised an issue as to whether or not the analyses underpinning the making of the deportation orders set out a lawful basis for concluding that deporting them would not interfere with their right to respect for their private life under article 8 ECHR. It declined to rule on the substantive point raised in that complaint until such time as the Respondents had an opportunity of filing submissions on it.
Decision:
The court therefore decided that the first and second applicants had made out the first ground of complaint as to warrant the granting of an order quashing the deportation orders made in respect of them. It also held that the third applicant was entitled to challenge the deportation order made in respect of her. Finally, it held that the applicants were entitled to challenge the deportation orders made in respect of them by reference to the analysis of the interference caused by deportation with their right to respect for their private life under article 8 ECHR.
