Sobhy v the Chief Appeals Officer, Minster for Employment Affairs and Social Protection and the Attorney General

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Sobhy v the Chief Appeals Officer, Minster for Employment Affairs and Social Protection and the Attorney General
Respondent/Defendant:The Chief Appeals Officer, Minster for Employment Affairs and Social Protection, Ireland and the Attorney General
Court/s:Supreme Court
Citation/s:[2021] IESC 81
Nature of Proceedings:Appeal
Judgment Date/s:16 Dec 2021
Judge:Baker M
Category:Immigration law
Keywords:Employment, Employment of ILLEGALLY resident third-country national (Illegal), Migrant (Illegally resident / staying), Regularisation
Country of Origin:Mauritius
URL:https://www.courts.ie/acc/alfresco/202b8113-c263-4b55-9f17-01d39a3c6e3c/2021_IESC_81.pdf/pdf#view=fitH

Facts: The applicant, a national of Mauritius, arrived in Ireland in 2008 under a scheme to attract foreign students. She studied and worked in Ireland lawfully until 2012. A change in the scheme required the applicant to apply for a change of status. Her two applications were refused. The applicant continued to reside and work in Ireland without an immigration … Read More

Principles:Social welfare benefits under the Social Welfare Consolidation Act 2005 cannot accrue to a person who does not have a work permit or immigration permission to be in the State, despite making the relevant statutory contributions.
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Dos Santos and Others v Minister for Justice and Others

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Respondent/Defendant:Minister for Justice and Equality, Attorney General and Ireland
Citation/s:[2015] IECA 210
Nature of Proceedings:Appeal
Judgment Date/s:30 Jul 2015
Judge:Ryan P., Finlay Geoghegan and Peart JJ.
Category:Deportation
Keywords:Child, Deportation, Deportation Order, Migrant (Illegally resident / staying), Minor
Country of Origin:Brazil
URL:https://www.courts.ie/acc/alfresco/98a68780-969f-4cb6-846a-1f3b248d555d/2015_IECA_210_2.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts: The appellants were all members of a Brazilian family who arrived in Ireland at various dates between 2002 and 2007. The father had arrived in Ireland lawfully on a work permit in 2002. It expired in 2003. Nevertheless he remained in the State, continued initially to work and paid all appropriate taxes without the relevant immigration permission. His unlawful … Read More

Principles:

Non citizens of the State do not have a personal right within the meaning of Article 40.3 of the Constitution to remain in the State and/or participate in community life in the State.

The UN Convention on the Rights of the Child is not part of Irish domestic law. Section 3(6)(a) of the Immigration Act 1999, which obliged the Minister for Justice to take account of an applicant’s age when deciding whether or not to make a deportation order against him or her, did not require him, when dealing with a minor applicant, to treat as a primary consideration the best interests of that child or, alternatively, to decide expressly whether deportation would be consistent with its best interests.

The EU’s Charter of Fundamental Rights has no applicability to the making of deportation orders.

The interference caused by deportation of non-settled migrants with the right to respect for their private life under article 8 ECHR does not have consequences of such gravity potentially to engage the article’s operation.

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Jin Liang Li v Governor of Cloverhill Prison

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Li
Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:[2012] IEHC 493
Nature of Proceedings:Application pursuant to Article 40.4 of the Constitution
Judgment Date/s:28 Nov 2012
Category:Detention, Refugee Law
Keywords:Asylum, Asylum (Application for), Detainee, Detention, Detention Facility, Enforcement Measure, Illegal Stay, Migrant (Illegally resident / staying), Non-national, Overstay(er), Refugee, Removal, Repatriation, Return (Forced), Third-Country national found to be illegally present
Country of Origin:China
URL:https://www.courts.ie/acc/alfresco/a7c7aa7f-d1f0-445a-a68d-2aa94dc25131/2012_IEHC_493_1.pdf/pdf#view=fitH

Facts The applicant was a Chinese national who was living in the State for approximately 13 years, having overstayed his visa entitlements and had been working illegally. The applicant refused to cooperate in obtaining travel documents for him and it later transpired that he had another valid passport unknown to the Irish authorities. He was arrested and as arrangements were … Read More

Principles:

The power to arrest an asylum applicant under section  9(8)(a) of the Refugee Act and detain him or her for up to 21 days is a form of preventive civil detention.

Given the constitutional guarantee in Article 40.4.1 the objective necessity for such detention must be compellingly established. The constitutional considerations must inform, and by necessity, delimit these powers to arrest and detain a person. The words ‘public order’ are juxtaposed beside ‘national security’ and this meant that the phrase ‘public order’ must be given its narrower and more restricted meaning. In that context the reference to public order referred to the threat posed to fundamental state interests by the likely conduct or even, in particularly unusual cases, the very presence of the applicant for asylum in the State.

Conduct which flouted the immigration regime, such as not cooperating or working illegally, was not conduct which threatened fundamental state interests.

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Okunade v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 49
Nature of Proceedings:Appeal
Judgment Date/s:16 Oct 2012
Judge:Supreme Court (Clarke J delivered judgment for a unanimous Court) (Denham C.J, Hardiman J, Fennelly J, O'Donnell J)
Category:Deportation, Residence
Keywords:Deportation, Deportation Order, European Convention on Human Rights (ECHR), Family Life (Right to), Migrant (Illegally resident / staying), Minor, Non-national, Removal, Repatriation, Residence
URL:https://www.courts.ie/acc/alfresco/d25e51cd-9709-48e1-8b57-e167c5657e0d/2012_IESC_49_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicants were Nigerian nationals whose asylum claims had been refused and who had made applications for subsidiary protection in the State and also applied to the Minister for permission to remain in the State for humanitarian reasons (“leave to remain”). The minor applicant was four years of age and was born in Ireland. He was not an Irish … Read More

Principles:

The Court considered the proper test for the granting of a stay or an injunction which has the effect of preventing an otherwise valid measure or order from having effect pending trial, while the court is also attempting to determine a regime which is necessary to properly protect the interests of all parties pending the full trial. The underlying principle must be that the court should put in place a regime which minimises the overall risk of injustice and that underlying principle remains the same whether or not the court is considering whether to place a stay on a measure or to grant an injunction.  The court must act in all cases so as to minimise the risk of injustice and that same underlying principle applied in any application in the context of judicial review.

The entitlement of a country to exercise a significant measure of control, within the law, of its borders was an important aspect of public interest of any state. Therefore, a significant weight needed to be attached to the implementation of decisions made in the immigration process which are prima facie valid and a high weight should be placed on the need to respect orders and decisions in the immigration process unless and until they are found to be unlawful. However, the Court considered the possible injustice to an applicant is a factor which must also be given weight, independent of any additional consequences which may be said to flow from deportation on the facts of an individual case.

However, in the absence of any additional factors on either side, then the position of the Minister would win out. The default position was that an applicant will not be entitled to a stay or an injunction. It may be that on the facts on any individual case, there are further factors that can properly be taken into account on either side.

If an applicant could demonstrate that a deportation, even on a temporary basis, would cause more than the ordinary disruption in being removed from a country, such as a particular risk to the individual or a specific risk of irremediable damage then such facts, if they were sufficiently weighty, could readily tilt the balance in favour of the injunction or a stay. Where, on an arguable basis, the High Court was faced with a situation where there was a credible basis for suggesting a real risk of significant harm to the applicant if they were to be deported, it would require very weighty considerations indeed to displace the balance of justice on the facts of that case.

Also all due weight needed to be attached to the undesirability of disrupting family life involving children, where after a successful judicial review or any other process, the children might be allowed to remain in or return to Ireland. 

At the stage of deciding on whether to grant a stay or an injunction the court has to decide on where the least risk of injustice lies, and the weight to be attached to any such difficulties will necessarily depend on the facts of the case, and such difficulties are not necessarily decisive, but are one factor to be taken into account.

The strength of the case can be taken into account provided that the assessment of the strength of the case does not involve analysing disputed facts or dealing with complex issues of law.

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Hussein v Labour Court & Anor

Respondent/Defendant:Labour Court & Anor
Court/s:High Court
Citation/s:Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:31 Aug 2012
Judge:Hogan J
Category:Employment
Keywords:Employee, Employer, Employment, Employment (Illegal), Employment of ILLEGALLY resident third-country national (Illegal), Exploitation, Foreigner, Immigration (Illegal), Migrant (Illegally resident / staying), Migrant Worker, Migration (Exploitative), Third-Country National, Third-Country national found to be illegally present
Country of Origin:Pakistan
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/3f2a0cfdd0d10ccd80257a6b004e2e1b
Geographic Focus:Ireland

Facts The applicant, Mr Hussein, and the notice party, Mr Younis are Pakistani nationals and cousins. In 2002, Mr Hussein, who operates a restaurant in Ireland, recruited his cousin to work as a Tandoori chef. Mr Younis maintained that he was required to work seven days a week with no holidays, that he was paid what amounted to pocket money … Read More

Principles:

Neither the Rights Commissioner nor the Labour Court can lawfully entertain an application for relief in respect of an employment contract that is substantively illegal for want of a work permit. Undocumented migrant workers do not benefit from employment legislation, even where they are not responsible for their unlawful status.

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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 … Read More

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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