Pachero v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality et al
Court/s:High Court
Nature of Proceedings:High Court of Ireland; Inter Partes; Application mandatory injunction by way of Judicial Review
Judgment Date/s:29 Dec 2011
Judge:Hogan J
Category:Deportation
Keywords:Border Crossing, Deportation, Immigration
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/d52e538177f9f42e802579a400538785?OpenDocument
Geographic Focus:Ireland

Facts

The applicants, a young married couple form Boliva (a visa exempt state), arrived at Dublin airport and were given  leave to land by an immigration officer under s. 4 of the Immigration Act 2004. Believing they could avail of the common travel area, they travelled via Northern Ireland to Scotland (en route to visit an aunt in England) and were arrested by the Dumfries and Galloway police on the basis that they unlawfully entered the UK as they had no visas. The UK authorities intended to deport them to Bolivia. The Irish authorities cancelled their permission to remain on the basis that, as a matter of law, their entry permission lapsed by operation of the Immigration Act 2004 once they left the State.

The applicants sought a mandatory injunction directing the Minister to communicate with the UK authorities that they retained a right to enter the State (i.e., that their permission to remain had not lapsed because they left the State).

Reasoning & Decision

The Court stated that this case highlights the limitations, anomalies and ambiguities in how the Common Travel Area between Ireland and the UK is operated.

The Court opined that the common travel area is a misnomer in that it has long ceased to be a genuine passport-free travel area in that it is for the benefit of the Irish and UK nationals only, and as there is no unified visa system.

The Court held that the only sensible interpretation of s. 4(2) of the Immigration Act 2004 is that a permission previously granted under s. 4(1) lapses once the applicant leaves the State. The Court acknowledged that s. 4(2) does not apply to persons arriving from Northern Ireland, but opined that it is not clear that s. 4 is workable unless the same conclusion is reached in the case of travellers arriving from Northern Ireland. The Court stated that it found itself obliged to interpret s. 4 as meaning that any prior permission granted under s. 4(1) to enter the State lapses once the person leaves the State, irrespective of whether that person intends to re-enter the State by land via Northern Ireland or otherwise. The Court opined that any other conclusion would punch a major hole in Ireland’s system of immigration control.

In the circumstances, the Court said that no question arose of granting the declarations sought.

The Court stated, obiter, that if the immigration officer were to be satisfied that the applicants made an innocent mistake which they would did not intend to repeat, then it would seem that they could not be properly refused under s. 4(3)(h) of the Immigration Act 2004 as that provision was forward-looking re an applicant’s intention to enter the UK illegally.

Principles:

A permission previously granted under s. 4(1) of the Immigration Act 2004 lapses once the applicant leaves the State.

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