Facts
The applicants were the parents and minor children, whose husband and father, the second applicant was made the subject of a deportation order in 2009, and on foot of which he was deported. An application was made to the Minister to revoke the deportation order but the Minister refused. The applicants sought to quash the refusal to revoke the deportation order and to challenge the constitutionality of Section 3(1) and (11) of the Immigration Act 1999. The second applicant had entered the State in 2002 on a work permit which was valid to 2004. He was the father of four Irish citizen children. The Minister refused to renew his visa. The applicant had accumulated a large number of convictions for a range of offences and had served a three year sentence. In March 2011, the Minister made a statement following the decision of the European Court of Justice (ECJ) in Zambrano (Case-34/09) on the position he proposed to adopt to cases which it was considered were affected by Zambrano. In April 2011 the applicants made a second application requesting the Minister to revoke the deportation order based on the Zambrano judgment. The applicant also disclosed that he had HIV and Hepatitis C for which he was receiving anti-retroviral medication. Submissions were also made on his criminal record. The Minister again refused to revoke the deportation order.
Reasoning
The Court held that the only new circumstances or events capable of being considered in a further application to revoke the decision under Section 3(11) were the pronouncement of the Zambrano judgment and the publication of the Minister’s statement of policy following Zambrano, and the disclosure of the applicant’s medical condition and his need for continuing treatment. The Minister had taken account of the representations made in that regard and addressed them in the decision so that their significance could be said to form part of the basis of the refusal decision.
The Court held that it was arguable that the Minister had erred in law in applying the principles in the judgment of the European Court of Justice in Zambrano to the personal and family circumstances of the applicants.
Cooke J. also that it was arguable that the Minister erred in law in construing and applying to the said personal and family circumstances, and particularly to the minor applicants as Irish and EU citizens, the protections afforded to them by Article 40.3, 41 and 42 of the Constitution of Ireland and Article 3 and 8 of the European Convention on Human Rights (ECHR).
He also found that the conclusions reached and the reasons given were unreasonable and disproportionate to the permanent impact of the order on the personal and family circumstances of the applicants having regard to the changed facts set out in the second application to revoke the deportation order, and to the fact that the minor applicants were Irish and EU citizens.
Decision
It was arguable that the Minister had erred in law in applying the Zambrano principles to the personal and family circumstances of the applicants.
It was arguable that the Minister erred in law in construing and applying the protections afforded to the applicants by Article 40.3, 41 and 42 of the Constitution of Ireland and Article 3 and 8 of the European Convention on Human Rights (ECHR) given their personal and family circumstances, and particularly the minor applicants as Irish and EU citizens.
The conclusions reached and the reasons given were unreasonable and disproportionate to the permanent impact of the deportation order on the personal and family circumstances of the applicants having regard to the changed facts set out in the second application to revoke the deportation order, and to the fact that the minor applicants were Irish and EU citizens.
