AL v Minister for Justice and Equality, Ireland and the Attorney General

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Respondent/Defendant:Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2014] IEHC 503
Nature of Proceedings:First instance
Judgment Date/s:01 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Deportation, First instance, Refugee
Country of Origin:China
URL:https://www.courts.ie/acc/alfresco/441404cb-dac1-4b63-b327-ce9ac06a5f63/2014_IEHC_503_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a Chinese citizen who had entered the State on the basis of a student visa in 2004. Her permission to be in the State expired in 2005 and she remained illegally in the State thereafter. Pursuant to s. 3 of the Immigration Act 1999, a proposal to deport her was made in 2008 on the ground that her deportation would be conducive to the common good. The proposal entitled her 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 her. She chose the latter course and, in 2013, the Minister for Justice refused to grant her leave to remain and made a deportation order against her under s. 3 of the Act of 1999. By then, she was married to a fellow Chinese national, QL: see [2014] IEHC 507.
She challenged the Minister’s decision on the basis that her lack of entitlement to leave the State voluntarily without a deportation order being made against her immediately following his decision to refuse to grant her leave to remain, breached her 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 her claim to remain on humanitarian reasons, she relied on the length of time she had spent in the State, i.e. ten years, during which she had married her husband, against whom a deportation order was also extant, and had a daughter, who was being raised in China.
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 her family members was going to occur as a result of the making of the deportation order against her. Both the applicant and her husband had been in the State 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 her to China with her husband. 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 her family life and/or family rights would not be affected by her deportation, she 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 she had family rights; rather, it was sufficient that she was a person who would be “affected” by the Minister’s decision under s. 3 of the Act of 1999. That being so, she had a constitutional right to fair procedures, including the right to make representations.
The court concluded that the applicant had a constitutional right to make representations to the Minister before he decided to make a deportation order against her. That right was reflected in s. 3 of the Act of 1999, which entitled her 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.

Facts:

The applicant was a Chinese citizen who had entered Ireland on the basis of a student visa in 2004. Her permission to be in the State expired in 2005 and she remained illegally in Ireland thereafter. Pursuant to s. 3 of the Immigration Act 1999, a proposal to deport her was made in 2008 on the ground that her deportation would be conducive to the common good. The proposal entitled her to leave Ireland 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 her.

She chose the latter course and, in 2013, the Minister for Justice refused to grant her leave to remain and made a deportation order against her under s. 3 of the Act of 1999. By then, she was married to a fellow Chinese national, QL: see [2014] IEHC 507.

She challenged the Minister’s decision on the basis that her lack of entitlement to leave Ireland voluntarily without a deportation order being made against her immediately following his decision to refuse to grant her leave to remain, breached her 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 her claim to remain on humanitarian reasons, she relied on the length of time she had spent in Ireland, i.e. ten years, during which she had married her husband, against whom a deportation order was also extant, and had a daughter, who was being raised in China.

The Minister contended that neither Article 41 of the Constitution nor article 8 ECHR conferred a right on non-Irish nationals to enter and/or reside in the State. He submitted that no separation of the applicant from any of her family members was going to occur as a result of the making of the deportation order against her. Both the applicant and her husband 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 her to China with her husband. 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 her family life and/or family rights would not be affected by her deportation, she 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 she had family rights; rather, it was sufficient that she was a person who would be “affected” by the Minister’s decision under s. 3 of the Act of 1999. That being so, she had a constitutional right to fair procedures, including the right to make representations.

The court concluded that the applicant had a constitutional right to make representations to the Minister before he decided to make a deportation order against her. That right was reflected in s. 3 of the Act of 1999, which entitled her 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.

Principles:

The procedure provided for in s. 3 of the Immigration Act 1999 safeguards the right of a proposed deportee to make representations to the Minister before any deportation order is made, and constitutes sufficient protection of the right to make representations under Article 41 of the Constitution and article 8 ECHR. The lack of an entitlement on the part of the proposed deportee to leave the State before a deportation order is made if the representations do not succeed in persuading the Minister for Justice to grant the proposed deportee leave to remain, does not amount to a breach of the proposed deportee’s rights under the Constitution or article 8 ECHR.

A person who was or might be “affected” or “adversely affected” by a discretionary decision of a public body has a constitutional right to fair procedures, which encompasses the right to be heard.

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