H & anor v Minister for Justice and Equality


H & anor v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice and Equality, Ireland
Court/s:High Court, Supreme Court
Citation/s:[2020] IEHC 360, [2021] IESC 0032
Nature of Proceedings:Appeal
Judgment Date/s:11 May 2021
Judge:Charleton P.
Keywords:Deportation Order, European Convention on Human Rights (ECHR), Family Member, Free Movement, Illegal Stay, Minor, Union Citizen
Country of Origin:Pakistan


MIH and her daughter, SIH, are Pakistani nationals. They arrived in Ireland in 2014 with MIH’s brother, a British citizen and applied for EU1 Residence Cards. These applications were refused. At that time, the Minister issued notifications proposing to deport the applicants pursuant to section 3 of the Immigration Act 1999, as amended. However, it was not until 18 months later that deportation orders were notified to the applicants.

The deportation orders were subsequently quashed in the High Court. The instant appeal concerns the 18-month time delay in issuing the deportation orders and the applicability of rights under the Irish Constitution and European Convention of Human Rights (ECHR) during this delay.


It was recalled that, as a general legal principle, the passage of time may lead to a situation where other rights can arise, generated not by the delay itself but significant circumstantial changes during this time. However, being on the territory of a State as a foreign national without the required visa or immigration permission does not itself give right to a legal status.

The proposition that moving to the State as a family gives rise to a right to remain under the Constitution or the ECHR was found to be untenable.  It was affirmed that it was not the delay that may give rise to rights, but rather the interrelationships that may arise as a result of the passage of time. It was nonetheless recognised that delay may be relevant in reducing the weight that would otherwise be accorded to the requirements of a firm and fair immigration system where that delay is a result of a dysfunctional system.

With regard to constitutional rights, Article 41, protecting the rights of family based on marriage was found to not be relevant, and rights under Article 40 of the Constitution were found to not have been interfered with because both mother and daughter were to be deported. With reference to Gorry v Minister for Justice and Equality [2020] IESC 55, it was recalled that even if the relationship between the brother and his sister and niece was protected under the Constitution, it would not override the constitutional entitlement of the State to regulate entry and stay of non-nationals.

It was also recognised that there is a remedy for delay in the form of mandamus, and that while delay may be wrong, the remedy for it did not come in the form of granting the right that was applied for.

Decision It was held that delay in issuing a decision does not change one’s legal status to grant them permission to remain.

Principles:Delay in issuing a deportation order, in and of itself, cannot create rights to remain in the State where otherwise non-nationals have no entitlement to residence.
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