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 … Read More

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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Wang (a minor) v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 311
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Jul 2013
Judge:Cooke J
Category:EU Treaty Rights, Residence
Keywords:Adult, Child, Dependant, EU Treaty Rights, Family Formation, Family Member, Freedom of Movement (Right to), Member State (Remain in the), Minor, Non-EU National, Non-national, Residence, Residence Permit, Union Citizen
Country of Origin:China / Hungary
URL:https://www.courts.ie/acc/alfresco/86f5c09d-0e67-49c9-a8bd-7b4b05b39981/2012_IEHC_311_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The second applicant was a Chinese national who arrived in the State on a student visa in 2004. She met a Hungarian national in 2005 and they married in 2006. She was subsequently granted permission to remain in the State for a five-year period under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 as the  wife … Read More

Principles:

It was not arguable that a parent could claim to be a dependent of a three year old EU citizen child and an adult could not be the dependent of a child. 

It was arguable that a parent might be considered a member of the household of a minor EU citizen and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

In applying the Chen principles and considering the question of self-sufficiency within those principles, it must be clear what test of self-sufficiency the Minister was applying. The Minister must reach a reasonable and proportionate conclusion in assessing an application as to whether the Chen conditions are met.

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