Facts:
In STE v Minister for Justice and Equality the High Court considered whether the Minister for Justice, when considering whether to deport a group of family members, is entitled to make a deportation order against one family member while granting leave to remain to others, resulting in the separation of the family.
The first named applicant arrived in the State from Cameroon in October 2003. He applied for asylum, which was refused by the Minister in July 2005. A deportation order was made in July 2006, and subsidiary protection was also refused at that time. The deportation order was notified to the first named applicant in September 2006. The second named applicant arrived in the State from Morocco in September 2007. In 2008, she was refused asylum and in 2011 she was refused subsidiary protection. The first and second named applicants formed an intimate relationship in 2012 and their son, the third named applicant, was born in March 2013. The second named applicant was granted leave to remain in August 2013. The first named applicant subsequently applied for revocation of the deportation order in July 2014 on the basis that his partner and child had permission to reside in the State. The Minister refused that application in February 2015 and the applicants subsequently brought judicial review proceedings challenging that decision.
Reasoning:
Humphreys J. held that the Minister’s refusal to revoke the deportation order should be quashed b reason of the failure to consider the applicants as a collective family unit when considering whether the revoke the deportation order in respect of the first named applicant. Although the parents are not a “family” in the limited sense in which that term was originally understood at the time of enactment of the Constitution in 1937, Humphreys J. was satisfied that they were a family in the sense in which that term is used in modern Irish society, and that they had family rights under art.8 of the European Convention on Human Rights. Humphreys J. noted that in the present case, the Minister made a decision giving the mother permission to remain, as if that were a unilateral and stand-alone matter, while requiring the father to be expelled from the State. Humphreys J. was satisfied that in so doing, the Minister had failed to rationally treat the family unit collectively. Even if could be said that their rights under art. 8 of the ECHR (or Article 40.3 of the Constitution) were not extensive, they did have the right to have significant weight to be attached to the desirability of keeping the family together. Humphreys J. held that on the facts of this case, the Minister had failed in that duty. A decision was made on permission for the mother in isolation from a decision on the father’s situation. The court held that unless there was a significant reason to the contrary, the Minister was required to take a holistic view of the position of a family unit, and to decide on the fate of its members in a coherent and collective manner. It was accepted that a compelling reason might be presented as to why one of two equally unlawful parties to a relationship should be allowed stay and the other be required to leave, but in the present case no such reason had been put forward. Humphreys J. stated that “to select between two equally precarious parties to a relationship and decide that one can stay and the other must leave, without compelling justification, is to actively break up the family by State action.” Humphreys J. distinguished this from a situation involving the deportation of the spouse or partner of a person with a right to remain independently of the Minister’s decision (such as an Irish or EU citizen) on the basis that it was the nature of the situation and the illegality of the other party’s presence rather than any ministerial decision as such that gave rise to a parting of the ways.
Accordingly, Humphreys J. quashed the Minister’s refusal of the application to revoke the deportation order in respect of the first applicant and directed the Minister to reconsider the application. In STE v Minister for Justice and Equality (No.2) [2016] IEHC 544, Humphreys J. granted the Minister a certificate of leave to appeal to the Court of Appeal; that appeal remains pending.
Decision:
Court quashed refusal to revoke deportation order.
