AB v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice
Citation/s:[2016] IECA 48
Nature of Proceedings:Appeal
Judgment Date/s:26 Feb 2016
Judge:Ryan S.
Category:Residence
Keywords:Residence
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/35b6361f-dfe3-4044-88dc-ebbab38303b3/2016_IECA_48_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts:

The applicant was a Pakistani national. Her daughter and son-in-law lived lawfully in Cork with their two Irish citizen daughters who were born, respectively, in 2010 and 2011. She came to Ireland on a visitor visa lasting for 90 days from the date of issue in April 2011 and was here for the birth of her daughter’s second child. Further permissions were granted enabling her to remain lawfully in the State for longer time covering a period up to 31st October 2012. During the currency of the first visa period, she went back to Pakistan but she returned to the State on 17 November 2011 and remained in the State thereafter.

After her arrival in November 2011, the applicant applied for a number of extensions of her permission to be in the State which were granted by the Minister until October 2012. Following another application by the applicant’s solicitors in February 2013, the Minister responded in a formal memorandum dated 20 March 2013. In this memorandum, the Minister set out the history of the applicant’s immigration status in the State and the submissions that were made on her behalf. The Minister refused the application to renew and instructed the applicant to make arrangements to leave the State since her visitor’s permissions had expired in October 2012. The letter stated that the applicant should provide the Minister with evidence of her departure which should be done by April 2013, and that if that was not done, it was the intention of the Minister to issue a notification under s.3(4) of the Immigration Act 1999, ie a proposal to deport.The applicant did not leave the State, and in April 2013 the Minister issued a proposal to deport under s.3 of the 1999 Act on the basis that the applicant’s permission had expired in  October 2012, that she had remained in the State since that date without permission and that she was consequently unlawfully present in the State. The letter outlined the three options open to the applicant under s.3(4), namely, that she could make representations in writing to the Minister within 15 days; that she could leave the State before the Minister decided the matter or that she could consent to the making of the deportation order. The applicant did not opt for any of the choices offered to her, but instead instituted judicial review proceedings seeking reliefs including an order quashing the Minister’s proposal to make a deportation order and a declaration that the Minister was obliged to put in place a procedure whereby the applicant could make representations that she is entitled to reside in the State on the basis of her rights under the Constitution and the European Convention on Human Rights without risking being permanently excluded from the State should those representations be unsuccessful.

The High Court (Barr J.) rejected the applicant’s claims in a judgment delivered on 1 October 2014 ([2014] IEHC 508). Barr J. accepted that the applicant had a constitutional right to make representations to the Minister against the proposed deportation and to have her circumstances considered against the background of Article 41 of the Constitution and Article 8 of the Convention. However, it was held that such rights were provided by s. 3 of the 1999 Act. It was held that the fact that the Minister would proceed in the case of rejection to make a deportation order was not an impediment to the applicant’s right to make representations, notwithstanding that it might operate as a deterrent to her or to other potential applicants. The High Court therefore held that s.3 of the 1999 Act was not unconstitutional or unlawful. The applicant appealed to the Court of Appeal.

Reasoning:

The Court of Appeal dismissed the appeal and rejected the applicant’s argument that she should be able to make a free-standing application to the Minister without fear that in case of rejection there would be an immediate deportation order. Ryan P. gave the judgment of the court, noting that the question raised in the proceedings was not whether the applicant had or did not have constitutional or ECHR rights or an entitlement to put forward a humanitarian case against deportation. Rather, the only question was one of procedure. Ryan P. held that the applicant did not have a right to insist on a particular procedure or to impose on the Minister an obligation to consider her application and circumstances in advance of the same considerations being brought into play when the Minister has to address them in the context of deportation consideration. Ryan P. noted that a person is in the State either with permission or without permission, and where a person is in the State without permission the Minister may issue a proposal to deport, and as part of that process the Minister will consider any legal, constitutional, ECHR or humanitarian grounds raised. Such consideration, however, takes place in the context of a proposed deportation order and not otherwise. The Court of Appeal was satisfied that if the applicant was correct that there was a freestanding application before the deportation process was commenced, “such proposed rulings in advance of any deportation consideration would create another layer of administration, not only for the Minister in preparing a mode of dealing with these claims and with all the necessary additional resources that would be deployed in dealing with those applications, but also for the courts which would have to cope with an influx of claims that arose upstream from the deportation order.” Ryan P. was satisfied that this would be contrary to the scheme of the legislative apparatus to deal with immigration and asylum claims, which consists of a body of legislation and a large number of cases decided by the Supreme Court and the High Court dealing with various aspects of the administration of this system. The Court of Appeal held that there was no justification for adding a new stage in the process.

It was also noted that the presumption of constitutionality applies to s.3 of the 1999 Act so the onus of proof was on the applicant to establish disproportion and not on the State to establish that its regime is reasonable. The applicants were held not to have not done so. It was not tenable to propose that there was an inhibition on making a case because of the consequence of a deportation order in the event of refusal. It was not that the person was inhibited from putting forward a case. If the person had rights, the Minister would be obliged to respect them. If the applicant was disappointed, he or she could seek judicial review of the Minister’s decision. The Court of Appeal was satisfied that there was nothing in the scheme of deportation under s.3 of the 1999 Act to inhibit any claim being put forward by the applicant or any other applicant. Accordingly, the Court of Appeal dismissed the appeal. The applicant sought a further appeal to the Supreme Court, but this request was refused by the Supreme Court ([2016] IESCDET 65).

Decision:

Appeal dismissed.

Principles:

The decision of the Court of Appeal in AB v Minister for Justice confirms that a person who is unlawfully in the State has no right to make a freestanding application for permission to be in the State outside of section 3 of the Immigration Act 1999.

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