Shaheen Javed 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 508
Nature of Proceedings:Judicial Review
Judgment Date/s:01 Oct 2014
Judge:Barr J.
Category:Refugee Law
Keywords:Deportation, Refugee
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/e75b4837-8b45-45dc-bb7b-8bd188eecd01/2014_IEHC_508_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a Pakistani national. She arrived in the State on foot of a visitor’s visa in May, 2011. Her daughter, son-in-law and two granddaughters lived in Cork. The latter were Irish citizens. She sought an extension of her permission to remain extended on a number of occasions, all of which were granted except for the last one, at which point the applicant was instructed to make arrangements to leave the State. As the Minister was not furnished with evidence of her departure from the State as he had requested, he proposed to make a deportation order against her under s. 3 of the Immigration Act 1999.
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. The applicant issued proceedings seeking to quash the issuing of the proposal and ancillary declaratory relief, including a declaration that the Minister was obliged to put in place a procedure whereby she could make representations in support of her claim to reside in the State on the basis of her rights under the Constitution and the European Convention on Human Rights, without undergoing the risk of being permanently excluded from the State should those representations be unsuccessful and a deportation order made against her.
Both parties agreed that the court did not have to determine the substantive human rights issue, i.e. whether she had family rights as might support her claim to residence in the State.
Accordingly, the central issue in the case was whether the applicant’s lack of entitlement to leave the State voluntarily without a deportation order being made against her on foot of any decision of the Minister to refuse to grant her leave to remain following consideration of any representations made by her, 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. She emphasised that she was the grandparent and carer to two Irish citizen children, and was part of their household together with her daughter and son-in-law. She contended that she was part of the family unit with rights protected under Article 41 of the Constitution and article 8 ECHR. If a deportation order were made against her, she claimed that she would be unlikely to see her Irish-based relatives again.
The Minister submitted that the notion of “family” under the Constitution had traditionally been interpreted by reference to the marital family, and that only the nuclear family based on marriage fell within the definition of “family” for the purposes of Article 41. The Minister pointed out that in R.X. v. Minister for Justice [2011] 1 ILRM 444, upon which the applicant relied, the High Court had not found that all grandparents fell within Article 41 of the Constitution. The Minister also argued that the High Court, in that case, had adopted an incorrect approach to the interpretation of Article 41.
Moreover, the Minister submitted that the issue did not really call for consideration. The applicant’s status was that of a visitor and it was never represented that she was entitled to reside in the State. In deciding whether or not to make a deportation order, the Minister would be able to “family and domestic circumstances” and the common good, including the legitimate interest in immigration control. The Minister contended that he had not been given an opportunity to consider any of the family and domestic circumstances of the applicant. As a result of that, the substance of the applicant’s alleged rights under Article 41 of the Constitution and article 8 ECHR was not in issue in the within proceedings and that any challenge based on those alleged rights remained to be determined. Accordingly, he contended that the challenge was premature.
The Minister then turned to consider s. 3 of the Act of 1999 and submitted that the procedure envisaged the making by him of a proposal to make a deportation order, entitling the subject of it to make representations which had to be considered before any order was made.
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.
The Minister pointed out that before being issued with the proposal to deport, the applicant had been refused leave to remain in the State, a decision which she had never challenged. Her complaint about the operation of s. 3 of the Act of 1999 amounted to a complaint that notwithstanding her failure to challenge the refusal of leave to remain, she was entitled to go through that process all over again.
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 any decision to make a deportation order in the future 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 Pakistani national. She arrived in the State on foot of a visitor’s visa in May, 2011. Her daughter, son-in-law and two granddaughters lived in Cork. The latter were Irish citizens. She sought an extension of her permission to remain extended on a number of occasions, all of which were granted except for the last one, at which point the applicant was instructed to make arrangements to leave the State. As the Minister was not furnished with evidence of her departure from the State as he had requested, he proposed to make a deportation order against her under s. 3 of the Immigration Act 1999.

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. The applicant issued proceedings seeking to quash the issuing of the proposal and ancillary declaratory relief, including a declaration that the Minister was obliged to put in place a procedure whereby she could make representations in support of her claim to reside in the State on the basis of her rights under the Constitution and the European Convention on Human Rights, without undergoing the risk of being permanently excluded from the State should those representations be unsuccessful and a deportation order made against her.

Both parties agreed that the court did not have to determine the substantive human rights issue, i.e. whether she had family rights as might support her claim to residence in the State.

Accordingly, the central issue in the case was whether the applicant’s lack of entitlement to leave the State voluntarily without a deportation order being made against her on foot of any decision of the Minister to refuse to grant her leave to remain following consideration of any representations made by her, 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. She emphasised that she was the grandparent and carer to two Irish citizen children, and was part of their household together with her daughter and son-in-law. She contended that she was part of the family unit with rights protected under Article 41 of the Constitution and article 8 ECHR. If a deportation order were made against her, she claimed that she would be unlikely to see her Irish-based relatives again.

The Minister submitted that the notion of “family” under the Constitution had traditionally been interpreted by reference to the marital family, and that only the nuclear family based on marriage fell within the definition of “family” for the purposes of Article 41. The Minister pointed out that in R.X. v. Minister for Justice [2011] 1 ILRM 444, upon which the applicant relied, the High Court had not found that all grandparents fell within Article 41 of the Constitution. The Minister also argued that the High Court, in that case, had adopted an incorrect approach to the interpretation of Article 41.

Moreover, the Minister submitted that the issue did not really call for consideration. The applicant’s status was that of a visitor and it was never represented that she was entitled to reside in the State. In deciding whether or not to make a deportation order, the Minister would be able to “family and domestic circumstances” and the common good, including the legitimate interest in immigration control. The Minister contended that he had not been given an opportunity to consider any of the family and domestic circumstances of the applicant. As a result of that, the substance of the applicant’s alleged rights under Article 41 of the Constitution and article 8 ECHR was not in issue in the within proceedings and that any challenge based on those alleged rights remained to be determined. Accordingly, he contended that the challenge was premature.

The Minister then turned to consider s. 3 of the Act of 1999 and submitted that the procedure envisaged the making by him of a proposal to make a deportation order, entitling the subject of it to make representations which had to be considered before any order was made.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.

The Minister pointed out that before being issued with the proposal to deport, the applicant had been refused leave to remain in the State, a decision which she had never challenged. Her complaint about the operation of s. 3 of the Act of 1999 amounted to a complaint that notwithstanding her failure to challenge the refusal of leave to remain, she was entitled to go through that process all over again.

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 any decision to make a deportation order in the future 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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