Sivsivadze v Minister for Justice and Equality & ors

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Respondent/Defendant:Minister for Justice and Equality, Attorney General and Ireland
Court/s:Supreme Court
Citation/s:[2015] IESC 53
Nature of Proceedings:Appeal
Judgment Date/s:23 Jun 2015
Judge:Murray, Hardiman, O’Donnell, Clarke and MacMenamin JJ.
Category:Deportation
Keywords:Absconding, Adult, Asylum, Deportation, Deportation Order, Family Life (Right to), Immigration, Minor, Overstay(er)
Country of Origin:Georgia
URL:https://www.courts.ie/acc/alfresco/b3fe2fb0-bb95-4883-8b4e-bec277ffaf14/2015_IESC_53_1.pdf/pdf#view=fitH
Geographic Focus:Europe

Facts:
The first and fourth applicants, both Georgian nationals, were wife and husband respectively, and parents of the second and third applicants. They had both unsuccessfully applied for asylum in Ireland. The Minister for Justice had made a deportation order in respect of the fourth applicant in 2001, on foot of which he had been deported in 2011.

The applicants issued proceedings challenging the constitutionality of s. 3(1) of the Immigration Act 1999, pursuant to which the order had been made, and s. 3(11) of that Act.  They also sought a declaration under s. 5 of the European Convention on Human Rights Act 2003 that the sub-sections were incompatible with the State’s obligations under the European Convention on Human Rights (“ECHR”).

The High Court (Kearns J.) rejected their challenge and they appealed to the Supreme Court. The High Court had been aware of the husband’s extensive abuse of the asylum and immigration processes, including use of a false name and evasion of deportation. During the appeal to the Supreme Court, it came to light that his wife’s asylum application had also been based on an untrue story.

The applicants noted, first, that s. 3(1) of the Act of 1999 required the making of a deportation order which had no temporal limitation and prohibited the re-entry of the subject of it to the State. They contended that that was unconstitutional, being a disproportionate interference with the right to family life under the Constitution. Secondly, they contended that s. 3(11) of the Act of 1999, which empowered the Minister to amend or revoke a deportation order, did not operate to save s. 3(1) from unconstitutionality, as that sub-section was itself unconstitutional, constituting a delegation of legislative powers prohibited by Article 15.2.1 of the Constitution which was not qualified by any principles or policies. Thirdly, they contended that the provisions were incompatible with the State’s obligations under the ECHR, being a disproportionate interference with the right to family life thereunder.

The Minister contested the claims and argued that the Supreme Court ought to dismiss the appeal for abuse of process on account of the parents’ abuse of the asylum process.

The Supreme Court dismissed the applicants’ appeal.

Reasoning:
It declined to dismiss the appeal on the basis of abuse of process, having regard to the objective constitutional interests involved, including those of the minor children, having regard to Article 42A of the Constitution, and the fact that it involves a challenge to the constitutionality of a provision of an Act of the Oireachtas. It observed, however, that the sole fact that a blameless minor had been included in proceedings would not necessarily prevent a court exercising its discretion to dismiss an appeal on the grounds of abuse of process, particularly in judicial review proceedings.

Turning to the challenge to s. 3(1) of the Act of 1999, it began by rejecting the proposition that the making of the deportation order against the fourth applicant constituted a sanction. It noted that, when the order was made against him, he had no permission to be in the State. Making the order amounted to no more than the application of the law and the exercise of sovereign powers to protect the integrity of the borders of the State. In passing, it noted that there was nothing to prevent the making of such an order because the subject of it had committed crimes.

The court held as misconceived the proposition that s. 3(1) was unconstitutional because of the allegedly disproportionate effect a deportation order had on family rights under the Constitution. The order was not necessarily unlimited in duration, bearing in mind that it could be revoked under s. 3(11) of the Act. In deciding whether or not to make an order or to revoke it, the Minister had to act constitutionally and to have regard to all relevant factors, including family rights. Whether an order was disproportionate or not would depend on the particular facts of each individual case; the argument that the section was disproportionate could not be made in a vacuum. The court also pointed out that a deportation order did not deny a non-Irish national any right to be or to remain in the State, as such a person did not have such a right. For an order to have a limited duration would be incongruous, because it would wrongly imply that the subject of it had a right to re-enter the State after a period of time had elapsed.
The court held that s. 3(11) was not incompatible with Article 15.2.1 of the Constitution. A decision by the Minister to make a deportation order or to amend or revoke it did not constitute a legislative act or the making of a regulation. It was an executive and administrative act. Article 15 of the Constitution therefore had no relevance.

Finally, for the reasons outlined by it in upholding the constitutionality of s. 3(1) and s. 3(11), the court rejected the argument based on incompatibility with the State’s obligations under the ECHR. It pointed out that, under ECHR caselaw, the duration of a deportation order was simply one factor among many which were relevant to the question of whether or not it was disproportionate. It observed that there was no ECHR case or principle from which it could be deduced that a deportation order of the sort made under s. 3(1), and which could be the subject of an application for revocation or amendment at any time under s. 3(11), was incompatible with obligations under the ECHR.  It re-iterated that the question of disproportionality could only be considered in the particular circumstances of an individual case.

Decision:

The Supreme Court accordingly dismissed the applicants’ appeal and upheld the constitutionality of s. 3(1) and s. 3(11) of the Act of 1999, and their compatibility with the State’s obligations under the ECHR.

Section 3(1) and s. 3(11) of the Immigration Act 1999, which concern the power to make and to amend or revoke a deportation order respectively, are not unconstitutional or incompatible with the State’s obligations under the ECHR.

Principles:

A non-Irish national who has no permission to be in the State may be made the subject of a deportation order by the Minister for Justice which has the effect of requiring him or her to leave the State and remain outside of it indefinitely. On account of his or her status, such an order does not deny him or her any right to be in the State. Whether or not the making of such an order is disproportionate on account of inter alia its effect on family life, will depend on the facts of each individual case. A general charge of disproportionality cannot be levelled against the sub-sections in an effort to have them struck down as unconstitutional. Such a case can only be made in a factual context.

The indefinite nature of an order made under s. 3(1) has to be considered in the light of s. 3(11), pursuant to which the subject of it may apply for it to be amended or revoked at any time. In deciding whether or not to make or to amend or revoke an order, the Minster for Justice must act constitutionally and have regard to the facts of the particular case, including any representations made about the impact of the order on such matters as family rights.

In deciding whether or not to dismiss an appeal for abuse of process in which a constitutional provision is challenged, regard must be had to the value which the Constitution attaches to such an appeal, the right of persons not to be subject to unconstitutional laws. It may also be necessary to consider the interests of any children who are party to the proceedings, bearing in mind Article 42A of the Constitution. However, the sole fact that a blameless minor had been included in proceedings would not necessarily prevent a court exercising its discretion to dismiss an appeal on the grounds of abuse of process, particularly in judicial review proceedings.

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