Sivsivadze 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 for Judicial Review
Judgment Date/s:21 Jun 2012
Judge:Kearns P
Category:Deportation
Keywords:Deportation, Deportation Order, Migrant (Illegally resident / staying)
URL:https://www.courts.ie/acc/alfresco/87909796-84e5-45a7-85f4-4b9f7dc3ddf4/2012_IEHC_244_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts
The first named applicant, a Georgian national who had been deported from the State after living unlawfully in the State after c. 10 years of living in the State on the basis of false identity, fraud and deceit, applied for revocation of his deportation order on the basis of family life rights in circumstances where his wife and child were lawfully resident in the State. The applicant’s wife had been complicit with her husband in respect of his deceit and fraud.

Rather than presenting as required to a garda station following the making of a deportation order in 2001, the applicant became an evader, living under a false name. He travelled to Iceland using a forged Spanish passport, and lodged an application for asylum there in 2002 using another false name. When he was returned to Ireland in April 2003 under the Dublin Convention, he signed on in the name of another false name. Georgian Embassy officials visited Dublin on various occasions between 2004 and 2009 but, despite interviewing the applicant repeatedly, were unable to verify or establish his identity because of the applicant’s lack of co-operation. The applicant was finally deported in 2011, and the Minister had refused his most recent application for revocation of the deportation order.

The applicants sought declarations that s. 3(1) and s. 3(11) of the Immigration Act 1999 (i.e., the provision allowing for deportation) were unconstitutional. The applicants argued that the indefinite, potentially lifelong, duration of expulsion under s. 3(1) was disproportionate having regard to their family rights, and that the legislature had failed to establish any principles and policies regarding the exercise of the power to revoke deportation orders. The applicants also sought declarations that the provisions in question were incompatible with the ECHR.

Reasoning
The Court said that ‘far from conducting some sort of roving or theoretical inquiry into the general constitutional state of health of s.3 of the Act, the function of the Court is to evaluate the constitutional arguments by reference to and in the context of the specific facts of the individual case. The Court stated that this was a case ill-suited for a constitutional challenge in that the deported applicant was never lawfully in this State and had displayed an egregious lack of candour and mala fides, only finally admitting to his true identity during cross examination before the Court, and any delay in operating the deportation order, which had been in place since 2001, was entirely due to that applicant’s subterfuge and fraud in which his wife was complicit.

The Court said it could not see how delay brought about by the applicant’s own wrongdoing and breach of immigration laws can be invoked in aid of his constitutional challenge to section 3(1). The Court said that the accepted dicta of the case law relating to fraud and abuse of the immigration system were applicable to this case.

The Court said that the applicants organised their family affairs in a manner designed to frustrate the operation of the immigration system and that, in the circumstances, it did not see how the applicant could contend that the statutory provision under which he was deported operated disproportionately having regard to his particular history and the very real requirement that this State have the capacity to maintain effective immigration controls.

The Court said that the claim that a deportation order of a specific time duration must, as a matter of constitutional obligation, be fashioned for a person in the applicant’s position struck it as somewhat unreal. Rather, the Court said, a system which permits the making of an indefinite deportation order only after the most careful scrutiny of the various factors identified by the ECtHR provides certainty and, under the system in place, does not precludes later applications for a revocation of the order where a change of circumstances so warrants, or even indeed where no change of circumstances at all has occurred.’

The Court said that the Immigration Act 1999, far from being a blunt instrument for deportation to be exercised at the whim of the Minister, contains multiple safeguards for a person in respect of whom the Minister proposes to make a deportation order.  The Court added that ‘…A continuing exclusion under s.3(1) must always remain open to submissions under s. 3(11) and the two sections cannot be artificially isolated from each other.’

The Court said that s. 3(11) is entitled to the presumption of constitutionality and the absence of “criteria, standards, goals” does not indicate that the Minister is empowered to act unconstitutionally. The Minister must determine every application on its merits and must act inter alia within the boundaries of the 1999 Act and the European Convention on Human Rights.’

With regard to the challenge to the decision as opposed to the underlying provision itself, the Court was satisfied that the most recent s. 3(11) decision was made in accordance with constitutional principles. The Court noted that the applicant was at all times unlawfully within the State and his stay had been prolonged by fraud and deception in which his wife was also implicated, and that both parties knew their circumstances were precarious when they married.

With regard to the ECHR arguments, the Court accepted stated that the duration of a deportation order is not the determining factor in cases of this nature coming before the Court but rather one of a list of factors all of which must be duly weighed and examined.

Decision
Having regard to the particular facts of the case, the Court said that it found it impossible to conclude that it should make a declaration that s.3(1) of the Act is per se incompatible with the State’s obligations under the European Convention of Human Rights, but added that is not to say that an individual decision in another case might not result in a different conclusion.

As noted above, the Court had also held that s. 3(11) is entitled to the presumption of constitutionality and the absence of “criteria, standards, goals” does not indicate that the Minister is empowered to act unconstitutionally, and the most recent s. 3(11) decision in the case was made in accordance with constitutional principles.

Principles:

In constitutional challenges to legislation, the function of the Court is to evaluate the constitutional arguments by reference to and in the context of the specific facts of the individual case.

A system which permits the making of an indefinite deportation order only after the most careful scrutiny of the various factors identified by the ECtHR provides certainty and, under the system in place, does not preclude later applications for a revocation of the order.

The duration of a deportation order is not the determining factor in deportation challenges, but one of a list of factors all of which must be duly weighed and examined.

S. 3(11) of the Immigration Act 1999 is entitled to the presumption of constitutionality and the absence of “criteria, standards, goals” does not indicate that the Minister is empowered to act unconstitutionally.

The Minister must determine every application to revoke a deportation order on its merits and must act inter alia within the boundaries of the 1999 Act and the European Convention on Human Rights.

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