THE SUPREME COURT
[Appeal No. 402 & 403/12]
LELA SIVSIVADZE, SOFIA ARABULI, MARIAM TOIDZE
(MINORS SUING BY THEIR MOTHER AND NEXT FRIEND,
LELA SIVSIVADZE) AND DAVIT ARABULI
MINISTER FOR JUSTICE AND EQUALITY,
ATTORNEY GENERAL AND IRELAND
JUDGMENT of Mr. Justice John Murray delivered the 23rd day of June, 2015
1. This is an appeal by the appellants against the decision of the High Court (Kearns P) refusing their application for (a) a declaration that section 3(1) of the Immigration Act, 1999 is unconstitutional and (b) a declaration pursuant to section 3(1) of European Convention on Human Rights Act, 2003, as amended, that s.3(1) of the Act of 1999 is incompatible with Ireland's obligations under the Convention.
2. The first named appellant is the wife of the fourth named appellant and both are the parents of two children, the second and third named appellants. The fourth appellant arrived in this country in 2001 and having failed in an asylum application an order for his deportation was made in December, 2001. It was not until November, 2011 that effect was given to that order when he was returned to his country of origin, Georgia. The background facts and circumstances relating to the appellants are explained in greater detail below.
3. It is relevant to emphasise at this point that the appellant’s case is an attack generally on the constitutionality of section 3(1) itself or in conjunction with subsection 11 of the same section and not on any individual decision of the Minister. Although these proceedings started out as judicial review proceedings they were ultimately sent for plenary hearing on the constitutional issue. As is evidence from the agreed issue paper and the submissions of the parties the constitutionality of section 3(1) is put in issue because, what is alleged is the requirement of the section (set out in paragraph 5 below) that a deportation order have effect for an indefinite period of time without any specified limitation. Thereby every deportation order actually or potentially has a disproportionate and unconstitutional interference with the rights of the family and the right to a family life as guaranteed by the Constitution. Although no particular order or decision of the Minister is in issue by way of judicial review the appellants do rely on their particular factual circumstances and the impact of the deportation on their family life in support of their contention that a deportation order made in accordance with section 3(1) will have adverse effects on deportees who have a family life in this country to an extent incompatible with the provisions of the Constitution. In addition, or alternatively, it is submitted on behalf of the appellants that section 3(1) of the Act is incompatible with Article 15 of the Constitution as constituting an unlawful delegation of legislative powers in the absence of a sufficient statement of principles and policies in the legislation governing how the Minister should exercise his power to make a deportation order. The claim for a declaration of incompatibility pursuant to s.5 of the European Convention on Human Rights Act, 2003 is an alternative one to the constitutional issues.
Relevant Statutory Provisions
(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.” [relevant provisions]
6. The respondent has submitted that in the circumstances which prevail in the present case, namely where a party, through deceit and making untruthful statements under oath, has abused the process of the court, this Court has a discretion to deny any relief to such applicants and to strike out the proceedings.
8. It would also be as well to state at this point, that in this appeal there is no issue concerning the validity of the deportation order as such, as made by the Minister in December, 2001 in respect of the fourth named appellant. The validity of that order had been challenged in judicial review proceedings brought in November 2011, on the grounds that his deportation disproportionately interfered with his family and private life. The application for such relief was dismissed in the judicial review proceedings and not appealed from. An issue concerning the constitutionality of s. 3 of the Act of 1999 had also been raised in the judicial review proceedings. As a matter of principle, parties are not permitted to use judicial review proceedings for the purposes of challenging the constitutional validity of an Act of the Oireachtas. Such a challenge must be initiated by way of plenary summons. What happened in this case is that the trial judge in the judicial review proceedings directed that the constitutional issue be pursued by way of a plenary hearing. That issue duly came on for hearing before the High Court including a hearing on the claim for a declaration of incompatibility with the European Convention on Human Rights. The High Court, Kearns J., delivered a judgment dismissing the appellants’ claim in the plenary proceedings.
Background Facts Concerning the Asylum Application and Status of the First Named Appellant
10. For the purpose of placing the issues arising in this appeal in their proper context, it is necessary to refer, at least in summary form, to the false story which that appellant relied upon throughout the asylum process and throughout the subsequent proceedings before the High Court and, initially, in this Court.
11. Before doing so I set out the correct facts, at least as now admitted by her in her affidavit of February, 2015, concerning the circumstances of her life in Georgia and her arrival in the State. She was born on the 11th June, 1981, and was almost 22 years of age when she arrived in the State. Her parents are still alive and living in Georgia. Her father is 77 and her mother 55. She has an older sister living legally in the United Kingdom with her husband and her children. She left school in Georgia at the age of 17 and went to the State University where she obtained a diploma in international studies. Along with many young people in Georgia, she could find no employment. Her mother was afraid that she would get depressed, and decided that she should leave Georgia for a better future. Her parents put the money together and found a man who helped her leave the country. That is why she came to Ireland to seek work and a better life. This is what emerges from the affidavit filed in this Court in February, 2015. It appears that she obtained the assistance of others with regard to her plans to emigrate and they advised and assisted her in pretending to be a minor of 16 years with false papers, and to claim she was fleeing Georgia because of being sexually abused by her stepfather.
12. As appears from the material before the Court, and the affidavit of Mr. Pat Carey, filed on behalf of the respondent, the false story which that appellant has relied upon was supported by a false Georgian birth certificate, giving her date of birth as the 11th October, 1986. For the purpose of seeking refugee status she claimed that she left Georgia because of a fear of persecution and, in particular, that her stepfather was threatening her with death and beating her. She was subjected to horrendous sexual abuse by him. She claimed her father had died when she was 2 years old. Her mother had remarried and when she died in December, 2000, the main problems with her alleged stepfather commenced. She claimed he beat her and raped her. On one occasion he had a knife in his hand which “he put on me and told me if I did not stop screaming he would kill me”. She claimed that she had lost consciousness because of bleeding from a wound and when she came round she was in hospital. She alleged that her stepfather was beating her in front of his friends, and that he was verbally and physically abusing her. After a further attempt by her stepfather to rape her, she decided she could not stand it any further and she ended up sleeping rough. She was afraid to return to Georgia because of the threats of violence and rape from her stepfather. All of the foregoing was, she now admits, a fabrication.
13. It would appear that the Refugee Tribunal member who considered her application accepted that she may have been subject to some form of abuse, but that she could have availed of state protection, that is to say, reporting these matters to the police. As a result a recommendation for refugee status was not made. She appealed to the Refugee Appeals Tribunal, where she gave the same false story. Her account of repeated abuse by her stepfather was accepted, but again the conclusion was that she did not qualify for refugee status because she could avail of state protection in Georgia by reporting the matter to the police and allowing the law to take its course.
14. She subsequently relied on the same story when she later successfully applied to the Minister for leave to remain in the State on humanitarian grounds. For that purpose, she also relied on a report from a senior clinical psychologist to whom she had told essentially the same story. This story of physical and sexual abuse by her non-existent stepfather was also relied upon in successive applications for the revocation by the Minister of a deportation order which had been made in respect of her husband, and fourth appellant, in 2001. Similarly, she and the fourth appellant relied on this background in unsuccessful proceedings brought to challenge the legality of the deportation order in respect of her husband. The decision of the High Court rejecting such an application has not been appealed.
15. Her current status is that she resides in this country by virtue of being granted leave by the Minister to remain, temporarily, on humanitarian grounds. It has been indicated to the Court that this may be reviewed in the light of the false story which she has relied upon throughout all those matters, but this is not something which has any bearing on the issues in this appeal.
16. As will be seen from the facts relating to the fourth appellant, her husband, she also fully and jointly engaged with him in deceiving the State authorities for the purposes of avoiding his deportation.
Background Facts Concerning the Fourth Named Appellant
It subsequently transpired that the fourth applicant had travelled to Iceland in 2002 on a forged Spanish passport in the name of Pinto Jose and applied for asylum in that jurisdiction under yet another identity. He was transferred to Ireland under the terms of the Dublin Convention on 25th April, 2003. He was required to present thereafter at regular intervals to GNIB. Immigration officers from the Georgian Embassy in London visited the fourth applicant on three occasions in an attempt to verify his identity. However, the fourth applicant did not co-operate and these attempts proved unsuccessful such that a travel document could not be issued in order to facilitate his deportation. The fourth applicant therefore, remained in the State until November 2011.
In October 2008, the fourth applicant applied to the Minister to revoke his deportation order pursuant to s. 3(11) of the 1999 Act. This application was unsuccessful and the order was affirmed on the 17th June, 2009. He made a second application to revoke on 27th July, 2010. This application enclosed a copy of his marriage certificate, in which he was referred to as Mr. Arabuli; his children's birth certificates and a letter from his wife to the Minister requesting that her husband, whom she referred to as Mr. Toidze, should be allowed to stay in the State. This letter, in addition to the eldest child's birth certificate, makes it clear that the first applicant knowingly participated in the deception practised by her husband.
The second application to revoke was rejected and the deportation order was affirmed once more on the 18th October, 2011. On 26th September 2011, the fourth applicant was arrested and detained by members of the Police Service of Northern Ireland while he was travelling through Northern Ireland. He was returned to the State on 3rd October 2011, and was refused leave to land. He was arrested and detained in Cloverhill Prison as he was the subject of a deportation order and was unlawfully seeking to re-enter the State. He challenged his detention pursuant to Article 40.4.2 of the Constitution but it was upheld as lawful on 24th October, 2011. In the course of this Article 40 application, the fourth applicant finally admitted under cross-examination that the name he had been using, Mr. Toidze, was an alias and that his true identity was Mr. Davit Arabuli.
The fourth applicant filed a third application to revoke pursuant to s.3(11) on the 25th October, 2011 which was refused on 3rd November, 2011. He then sought an injunction restraining his deportation. This was also refused and, on 4th November 2011, the fourth applicant was deported to Georgia.”
Circumstances of the Relationship of the First and Fourth Named Appellants
Summary of Submissions of the Appellants
21. The appellants also submit that s.3(11) cannot be relied upon as mitigating the effects of s.3(1) because it is in itself unconstitutional since it constitutes a delegation of legislative powers prohibited by Article 15.2.1 of the Constitution. The Act does not contain any statement of principles or policies governing the manner in which the Minister should consider whether or not to amend or revoke a deportation order as required by the principles set out by the courts in such cases as Cityview Press v. An Chomhairle Oiliúna (cited below). Therefore, s.3(11) constitutes an impermissible conferring on the Minister of legislative powers contrary to s.15.2.1 of the Constitution.
22. In the alternative, the appellants seek a declaration pursuant to s.5 of the European Convention Act, 2003 that s.3(1) and s.3(11) are incompatible with the State’s obligations under the Convention. In this respect the appellants essentially deploy the same arguments concerning the necessarily disproportionate effect which an indefinite deportation order under s.3(1) will have on a deportee and his or her right to family life as guaranteed by Article 8 of the Convention. The case law of the European Court of Human Rights makes clear that any deportation order which interferes with the right to family life under Article 8 must be proportionate in its effect. It is submitted that the indefinite duration of a deportation order under s.3(1) offends against that principle and that it is not mitigated by the effect of s.3(11) concerning the amendment or revocation of a deportation order.
Summary of Submissions of the Respondents
24. The respondents submitted that the learned president was correct in his judgment in the High Court in deciding that s.3(11) was not a power granted to the Minister in breach of Article 15 of the Constitution, which reserved the legislative power to the Oireachtas. It is submitted that the nature and function of the power granted by sub-section 11 is a discretionary power of the Minister to be exercised in accordance with constitutional justice and obligations under the Convention to the extent which they have been incorporated under the European Convention on Human Rights Act, 2003. It was also submitted that the learned president was correct in deciding that the absence of principles and policies does not indicate that the Minister is empowered to act unconstitutionally. The Minister must determine every application on its merits, and insofar as it may interfere with fundamental rights, has both the duty and capacity to make a decision which contains a proportionate balance between public interest and the rights of the individual. Therefore, it was submitted, the exercise of the power to amend or revoke a deportation order is not a power which can be said to be in breach of Article 15.
Dismiss for Abuse of Process of the Courts
26. I think this matter can be dealt with fairly succinctly. First of all, to state the obvious, the appellants could not pursue or obtain any relief based on facts that are now exposed as being false. Secondly, if these were judicial review proceedings simpliciter, in which the appellants sought the discretionary remedy of judicial review in respect of a discrete decision affecting them, there are ample grounds upon which the Court could consider dismissing an appeal in such matters on the grounds of the egregious abuse of process of the courts in this case.
27. However, this appeal concerns the constitutionality of s.3(1) and (11) generally and does not involve the judicial review of discrete decisions. It is true that these proceedings commenced in the form of a judicial review, which is anomalous, and this Court has pointed out on several occasions that proceedings challenging the constitutionality of an Act of the Oireachtas should be in the form of plenary proceedings and not a remedy pursued by way of judicial review. However, in this case the High Court directed that these constitutional issues be sent for plenary hearing and they were duly heard and determined by the High Court. Those issues concerned the constitutionality of the relevant provisions generally and were summarised in the High Court as being:
(b) If necessary, a Declaration that section 3(1) and/or section 3(11) are incompatible with the State's obligations under the European Convention on Human Rights (ECHR).”
29. On the other hand, the value which the Constitution attaches to a right of appeal in a case involving a challenge to the constitutionality of an Act must, at the very least, be taken into account in determining whether to dismiss an appeal on discretionary grounds because of an abuse of process. The rights of persons not to be prejudiced by laws which are incompatible with the Constitution is a fundamental principle. Whether Article 34.5 should be interpreted as going so far as to prohibit the dismissal of such an appeal on purely discretionary grounds is not necessary to decide. Account must also be had to the interests of the children which are of paramount importance, although I would not go so far as to say that the sole fact that a blameless minor has been included as one of the plaintiffs or applicants in a case would prevent a court exercising its discretion to dismiss an appeal on the grounds of abuse of process, particularly in judicial review proceedings.
30. In all the circumstances, I am satisfied that this appeal should not be dismissed in limine on the grounds of the egregious abuse of process on the part of the first and fourth appellants given that what is in issue is their claim to a right to family life under the Constitution and the European Convention on Human Rights when, objectively, it is not disputed that they have been adversely affected although, of course, the State claims, for entirely constitutional and legitimate purposes.
31. Moreover, I think the Court must have regard to Article 42(A) of the Constitution (the 31st Amendment) which provides, inter alia, “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.” This is an obligation placed on the branches of government, described as Organs of State in Article 6 of the Constitution, including the judicial branch of government. In the circumstances, I am satisfied that this appeal should not be dismissed by reason of the abuse of process by two of the appellant, having regard to the objective constitutional interests involved, including those of the minor children, and the fact that it involves a challenge to the constitutionality of a provision of an Act of the Oireachtas.
Whether Deportation Order is a ‘Sanction’
33. It is convenient when considering this submission to also address the status of the fourth appellant at the time when the deportation order was made (and which it has been since).
34. In this regard, the status of the fourth appellant when the deportation was first imposed in 2001 was that of an alien (a non-national or a person who is not a national of any E.U. or E.E.A. state) who had no right to be or remain in the State. It will be recalled that when he first arrived in the State in 2001 he applied for asylum under a false name. He then applied for asylum under another name, but subsequently withdrew that application. He did not attend for interviews with the Refugee Applications Commissioner, and his application for asylum was refused. Thereafter he ceased to have any status as an asylum seeker. Thereafter, whatever rights he may have had as an asylum seeker under E.U. law, and implementing national legislation, ceased to have any bearing on his situation. As this Court stated in Goncescu & Others v. Minister for Justice Equality & Law Reform  IESC 49, at paragraph 113:
In this particular case the fourth appellant had been notified by the Minister of his intention to make a deportation order, but he did not choose to make any submissions to the Minister before that order was made. In his judgment in A.O. and D.L. v. Minister for Justice  1 I.R. 1, at 24, Keane C.J. stated that the “inherent power of Ireland as a sovereign State to expel or deport non-nationals (formerly described in our statute law as "aliens") is beyond argument.” He approved of the dictum of Costello J. in Pok Sun Shun v. Ireland  I.L.R.M. 593 at p. 599, (and which has been also approved in successive judgments of this Court):
37. All of the foregoing demonstrates that the deportation order made in respect of the fourth appellant in December, 2001 was an executive decision within the powers of the State, exercised by the Minister, as authorised by statute, to deny to the fourth appellant permission to enter or remain in the State. The judicial authorities to which I have referred make it quite clear that no alien has a right to enter or to remain in the State without lawful permission. So an alien who presents himself or herself at a point of entry to the State may be refused leave to land, or if found unlawfully within the State may be deported by order of the Minister on foot of an existing deportation order or a new one. Deporting an alien, such as the fourth named appellant, in those circumstances, is no more than the application of the law and the exercise of sovereign powers to protect the integrity of the borders of the State by refusing permission to land or to stay. It is not in any sense a punishment or sanction, administrative or otherwise.
38. The fact that a person can be prosecuted for acting in breach of a deportation order is a separate matter and does not affect the nature or a deportation order pursuant to s.3(1). The deportation order was not made because he had been convicted of any offence.
39. In support of the contention that the deportation order should be treated as the imposition of a sanction on the fourth appellant, counsel referred, by analogy, to a number of cases of the European Court of Human Rights, in particular Nunez v. Norway, 28th June, 2011, Emre (No.2) v. Switzerland, October, 2011, and Antwi v. Norway, 14th February, 2012. In none of these cases was the Court of Human Rights concerned with the question as to whether a deportation order, as such, is a sanction or punishment when made in respect of an alien who has no right to enter or to remain in a State. However, the important distinction between this case and those cases is that they were all cases in which the deportees were deported under the respective national laws because they had committed criminal offences.
40. For example, in the Emre v. Switzerland case the complainant was the holder of a resident’s permit, and lawfully resident in Switzerland, but it was withdrawn and he was deported because he was convicted of a series of offences involving wounding, grievous bodily harm, assault, robbery and a range of other offences. Thus, the deportation order could be said to be in the form of a sanction because it was made as a consequence of a criminal offence committed by a foreigner who was otherwise lawfully within the State concerned. There are other reasons, including the particular facts and circumstances of each case, and domestic practice in immigration cases, which also differentiate those cases in principle from the present one. I do not consider it necessary to consider in detail these cases since, for the specific reasons stated, they could not be said to lend support to the submission that deportation order of the kind made in respect of the fourth appellant was a sanction or punishment. In any event, any objective analysis of a deportation order such as that made in this case pursuant to s. 3(1) leads to the conclusion that it is not a punitive measure.
41. Accordingly, this premise or proposition advanced on behalf of the appellants is not sustainable.
42. In any event, it has to be said that there is no prohibition, as such, in law or the Constitution which prevents the deportation of an alien as a consequence of having committed a serious criminal offence. It is a common practice among states and as regards the third relief sought by the appellants concerning compatibility with the European Convention on Human Rights, it is also evident from the European Court’s case law that deportation as a sanction in such circumstances does not, as such, contravene the Convention. What is always open to question, of course, as in deportation generally, is whether the decision taken is in conformity with the Constitution and the law both as to the authority to make the decision and its proportionate interference, if any, with rights guaranteed by the Constitution. Indeed, the appellants did not submit that on this ground alone that the sub-sections in question stood to be impugned, but sought to characterise the kind of deportation order in this case as amounting to a sanction, as part of the context in which the constitutionality of the sub-sections should be examined. As I say, this would not be a correct context to examine the kind of deportation order referred to in the issues raised in this case.
The Constitutionality of Sections 3(1) and 3(11) of the Act of 1999
44. The time limit within which to challenge the lawfulness of such an order had long since passed when he was arrested in October, 2011 for unlawfully entering the State. He was then detained with a view to implementing the deportation order. Following his arrest, and before he had been actually deported, he brought an application to the High Court pursuant to Article 40 of the Constitution in the false name he was using at the time, Datia Toidze, claiming that his detention for the purpose of giving effect to the deportation order of 2001 was unlawful. The application was dismissed by Hogan J. in a judgment delivered on the 24th November, 2011. There was no appeal from that decision.
45. The challenge to the Constitution is, although couched in general terms focused in the first place, on the potentially disproportionate impact which allegedly an indefinite and perhaps lifelong deportation order may have on the family life of a person who will, as a result of deportation, be separated from a spouse and children lawfully resident in this country.
46. Although the Court in this appeal is not concerned with a judicial review of the lawfulness or constitutionality of any particular decision of the Minister, what the appellants hope to achieve, if successful, by virtue of a declaration that s.3(1) and/or s.3(11) of the Act are unconstitutional, is that as a collateral consequence his deportation order may be deemed null and void.
47. However, even if one is to take fully into account the particular family circumstances of the four appellants, the argument that a deportation order made by the Minister pursuant to s.3(1) could or actually did have a disproportionate and thereby unconstitutional effect, is premised on the asserted interpretation of s.3(1) that an order made under that section is one which necessarily “entails an indefinite period of exclusion from the State”. The essence of the complaint of the appellants is that the duration is not defined as it extends indefinitely and is potentially life long.
48. For convenience I repeat here the provisions of section 3(1):
49. The constitutionality of a power of the Minister to make a deportation order simpliciter, even when it impacts on the family life of the deportee, is not in issue. It would not be tenable if it were. What is claimed is that the Minister’s order cannot adversely affect constitutional family rights in a manner which is disproportionate. Of course, in deciding whether or not to make a deportation order the Minister is bound to make such a decision in a manner consistent with the Constitution, including the rights of the family and the interests of any minor children affected (see, for example, Fajujonu v. Minister for Justice  2 IR 151 and Lobe & Others v. Minister for Justice, Equality & Law Reform  IESC, where I concluded in my judgment “In deciding whether there is such good and sufficient reason in the interests of the common good for deporting the non-national parents the Minister should ensure that his decision to deport, in the circumstances of the case, is not disproportionate to the ends sought to be achieved.”) Should persons adversely affected by such a deportation order feel aggrieved on the grounds that the Minister did not exercise his powers constitutionally and proportionately, they have a remedy to seek to set aside that particular order by way of judicial review?
50. It seems clear to me that the principle of proportionality cannot arise for the purposes of a general attack on the constitutionality of the section. It is true that a deportation order is not made for a particular duration, such as a specified number of years, and is indefinite in that sense. To say however that this gives rise to a constitutional frailty is to misconceive, in my view, the very nature of a deportation order made in respect of an alien, as understood in the context of these proceedings.
51. First, it should be said that a deportation order is not necessarily unlimited in time. It will not contain within itself a limitation, but the provisions of s.3(11) cannot be ignored. This provides:
53. The foregoing principle according to which the Minister, in exercising a statutory discretion, is bound to act in accordance with the Constitution and the statute itself might at the present time be said to be trite law. The obligation to exercise a statutory discretion in a manner consistent with the Constitution and its principles stems of course from the decision of this Court in East Donegal Co-Operative and others v. Attorney General  I.R. 317 where the Court considered a statutory discretion conferred on a minister pursuant to section 3 of the Livestock Marts Act, 1967. In that case it was stated:-
55. This fundamental principle is again reflected and stated by Henchy J. in his judgment in McMahon v. Leahy  I.R. 548. In that case he rejected the argument that once it had been shown that none of the statutory exceptions from extradition applied, the Court had no discretion but to make an extradition order in view of the seemingly mandatory language of the Extradition Act, 1965. In his judgment Henchy J. stated:-
56. In the High Court the learned President, having regard to these principles, concluded that the Minister must determine every application pursuant to s.3(11) on its merits and must act, inter alia, within the boundaries of the Act of 1999 and there is nothing in the provision to suggest that the Minister is empowered to act unconstitutionally. The learned President was, in my view, entirely correct in this interpretation of section 3(11). Self-evidently the same applied to s.3(1) itself where there is nothing in the provision or indeed the Act generally, which would empower the Minister to make a decision without regard to all matters which he is constitutionally bound to take into account and nothing which would authorise him to make a decision which disproportionately interfered with a right under the Constitution. He would also, of course, be bound to take a decision under any provision of s.3 with due regard to the provisions of the European Convention on Human Rights Act, 2003.
57. It is the case of course that the appellants have placed particular emphasis on the indefinite and potentially lifelong duration of a deportation order in the form which it is required to be made by virtue of section 3(1). The order must require the non-national concerned to leave the State and “remain thereafter out of the State”. The learned President found that the making of such an order in that form placed the non-national or alien in the same position as any other non-national, restoring the deportee to the position he previously stood as a non-national under s.5 of the Act of 2004 (cited above). That is the section which prohibits any non-national entering the State without permission. I also think the President was correct in adopting that approach. A person who is being deported, because he is a non-national without any right to enter or remain in the State, once deported cannot re-enter the State unless the deportation order is amended or revoked by the Minister. A non-national, say for example from Georgia like the first and fourth appellants, who has not previously entered the State may not ever enter the State unless, pursuant to s.5 of the Act of 2004, he or she has obtained permission from the Minister to do so. They are in substance in the same position. The difference as to the manner in which a deportee must seek authorisation to enter the State is different but for objective reasons, namely that he was previously unlawfully present in the State, which resulted in a deportation order.
58. It would be incongruous to expect a deportation order of such a nature to have a defined or limited period within which the obligation to remain outside the State would end. Any such non-national never has or had a right to enter and remain in the State without first obtaining official authority. Such a non-national does not acquire a right to enter or re-enter the State with the passage of time alone. It would be potentially misleading to limit the obligation to remain outside the State to a specified number of years since that could be taken as wrongly implying that the deportee was permitted to return after the expiry of such a period.
59. It might be logical for a State, as some do, to make a deportation order for a specified time if it was made only because a person had committed a criminal offence and that person had otherwise enjoyed a right of residence in the State concerned. But that is not the kind of situation being addressed here. In any event, it is a matter for each State to establish its own system for the regulation of immigration matters subject to its own Constitution and laws, and with due regard to its obligations under the European Convention on Human Rights.
60. There are of course differences between the position of a deportee who was deported because he or she was unlawfully present in the State and a non-national who has never entered the State but nonetheless requires permission to do so. Even though a deportee has to go through a different procedure, that of applying to have a deportation order revoked or amended (as opposed to a permission ordinarily sought in the case of a non-national) that is an administrative procedure again brought about by the deportee’s previous unlawful presence in the State. Fundamentally he remains, in principle, as he always was as a non-national, that is to say a person who cannot enter the State without first getting a form of authorisation to do so.
61. In any event, as I have pointed out, the principle of proportionality does not really arise in this context since this falls to be applied in the circumstances of each individual case and there is nothing in the relevant sections or the Act preventing the Minister doing so. In the present context it is the status of the non-national which is definite and permanent, that is to say a person without an inherent right to enter the State but only a right to do so on permission. Section 3(11) in any event ensures that a deportee can apply at any time within reason to the Minister for a revocation or amendment of the deportation and it is incorrect to describe the deportation order as simply indefinite, and no more.
62. It has not been necessary to examine the nature and scope of the rights to family life under the Constitution in the context of the making of a deportation order of a non-national. It is sufficient to say that insofar as in the particular circumstances of a case a deportation order may interfere with constitutional family rights of those concerned, it is a matter for the Minister to decide whether a consideration of such rights means that a deportation order should not be made, or should be revoked. Any such decision adverse to the deportee or his family is subject to scrutiny as to its proportionality under the Constitution in the circumstances of each case.
63. Since, as explained above, there is nothing in s. 3(1), 3(11) or the Act itself restricting any constitutional obligation of the Minister to exercise his discretion proportionately in the circumstances of any individual case, it cannot be said that these provisions are unconstitutional because they would necessarily involve an adverse impact on family rights (or otherwise) as guaranteed by the Constitution.
Incompatibility with Article 15.2.1 of the Constitution
66. The appellants relied, inter alia, on the leading case of Cityview Press v. An Chomhairle Oiliúna  I.R. 381 at 398, where the test to be applied was described as follows:-
68. It seems to me that a decision by the Minister to deport in the first instance or to decide whether or not to amend or revoke such an order does not constitute a legislative act or the making of a regulation. It is an executive and administrative act. The Oireachtas has decided that non-nationals found unlawfully within the State may be deported pursuant to section 3(1), and may re-enter if and when the order is amended or revoked. In T.C. v. Minister for Justice, Equality and Law Reform  4 IR 109 at para. 26, Fennelly J. referred to the powers of the Minister under s. 3(11) in the following terms:-
69. Article 15 prohibits the delegation of legislative powers and since the Minister’s function is not legislative it has no bearing, as such, on section 3(11). In any event, it can be said although it is not strictly necessary to do so, that the exercise of the powers under s. 3(11) is done so in accordance with the principles implicit in the exercise of a statutory discretionary power as outlined above and as explained in the judgment of the President of the High Court in this case. The Minister has to act in the interests of the common good in determining whether a deportation order should be revoked or amended on the one hand, and on the other balance this against the degree of any restriction on the fundamental rights, including family rights, of those affected. That is something to be decided in the circumstances of each case.
70. Having regard to the foregoing considerations, I am satisfied that s. 3(11) is not in conflict with Article 15 of the Constitution.
Compatibility with European Convention on Human Rights
72. As regards the statutory provisions in question the appellants have essentially deployed the same arguments as to their import and effect as they did in arguing that they were incompatible with the provisions of the Constitution. This is that a deportation order under s. 3(1) is or may be potentially disproportionate in its effect on the fundamental rights of those affected, in particular in cases where there is an interference with the right to family life protected by Article 8 of the Convention. This arises by reason of deportation orders of indefinite duration, which may last for a lifetime.
73. As I have already explained it is wrong to consider the effect of an order under s. 3(1) in isolation from the power of the Minister to amend or revoke such an order at any time pursuant to section 3(11). Again, the question of compatibility with obligations under the Convention fall to be examined in the light of the duty of the Minister to, inter alia, ensure that a deportation order or a decision not to amend or revoke constitutes a proportionate balance between the State’s interest in protecting the common good on the one hand, and limiting the exercise of a fundamental right, including a right to family life, by those directly affected.
74. Counsel for the appellants has referred to an extensive number of cases in which the European Court of Human Rights have found that states have been in breach of their obligations under the Convention to respect family life as guaranteed by Article 8 of the Convention because of the disproportionate effect of a deportation order, including its duration, on such a right.
75. In this case one is concerned with the compatibility generally of s. 3(1) and s. 3(11) with the obligations imposed on Ireland by the Convention and not the application of those particular sections in the circumstances of a particular case, including the particular circumstances of the appellants case, even though those circumstances are held up as an alleged example of a deportation order may have such a disproportionate effect.
76. It is not in issue that the case law of the European Court of Human Rights (hereafter “the European Court”) recognises that the deportation of non-nationals, who do not have a right to enter or remain in a country, is a legitimate public policy objective as are other legitimate aims of the making of deportation orders such as the prevention of disorder and crime and the protection of public health or morals.
77. It also cannot be gainsaid that a deportation order may interfere with the right to family life of the deportee or the family members, including children. On the objective facts of the situation of the appellants, their family life is interfered with by reason of the fact that the fourth appellant has no authority to enter the State where his wife and children currently reside. As the European Court has consistently pointed out, even where a deportation order serves a legitimate public policy purpose:-
78. The constant practice of the European Court in the light of the foregoing approach is to examine the circumstances of each particular case before determining whether the deportation was necessary in a democratic society, and in particular whether it was proportionate to the aim pursued. In doing so, it has set out a range of criteria in its case law. Most of the cases which the court has had to consider appear to involve deportation of persons who had been authorised to reside in the state in question but which were being deported because they had committed a serious criminal offence. That is obviously not the case here. Also in many cases the deportee and his family members may have lawfully lived for very many years or even many decades in the host state and some were what is described as second generation immigrants, namely, those who were in the host state from birth but had not acquired citizenship of that State. Accordingly, the criteria which the European Court has repeatedly recited in its case law reflect a myriad of circumstances which can arise in this type of case. Not all of the criteria will be relevant to every case. I would add in passing that the making of a deportation order as a form of sanction because a person committed a criminal offence in the host state has never, as such, been regarded as in any way incompatible with protections under the Convention. Once a legitimate public policy objective is being pursued what the court examines is whether the deportation order is proportionate to the circumstances of the particular case. One of these circumstances may be the duration of the effect of the deportation order. That is one factor among many to be taken into account in examining whether in all the related circumstances of a particular case, the principle of proportionality has been observed.
79. The European Court has set out in its jurisprudence a range of criteria to be considered in this kind of case. In Kahn v. United Kingdom  50 EHRR 47, the Court stated, at paragraph 39:
- the length of the applicant’s stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.”
81. I think it is correct to say that in every case in which a deportation has been made for legitimate public policy objectives, the European Court has addressed the compatibility of a State’s actions with its obligations under the Convention by taking into account all the relevant circumstances of the particular case and thereby determining whether the measure was proportionate. The duration of a deportation order is simply one factor that has been taken into account in applying the proportionality test particularly in cases where there has been a specified period of exclusion following a criminal conviction. In the Uner case for example there was a ten year exclusion period imposed on the claimant. That was because he had committed a serious criminal offence but was otherwise entitled to reside in the Netherlands. He had come there at the age of twelve with his parents and obtained a permanent resident permit. He had a partner and two sons, both of whom had Dutch nationality. However, there were other factors which the court took into account which led it to conclude that the respondent state, the Netherlands, had not failed to strike a fair balance between the right to family life of the applicant and the public interest. Again, in the Khan case referred to above, the deportation involved a Pakistani national who had moved to the United Kingdom when he was three years old and was granted indefinite leave to remain. He also was convicted of serious criminal offences and deported to Pakistan. So, as far as any period was involved, the court noted that it appeared “the latest the applicant would be able to apply to have the deportation order revoked would be ten years after his deportation”. However, the court decided “in the light of the above, having particular regard to the length of time that the applicant has been in the United Kingdom and his very young age at the time of his entry, the lack of continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant has not reoffended following his release from prison…the court finds that the applicants deportation…would not be proportionate…”.
82. These cases are simply illustrative of the issues which have arisen before the European Court concerning the proportionality of deportation orders and their effect. They demonstrate, however, that it is in the nature of a proportionality test that it can only be applied to the particular circumstances of each case. There is no case or principle enunciated by the European Court from which one could deduce that a deportation order which has the effect of removing an alien, who had and has no right to be in the host state, for an indefinite period but with the option of applying at any time for a revocation or amendment of the deportation order is, in principle, incompatible with Convention obligations. There may well be circumstances in which the making of such a deportation order or a refusal to amend or revoke could be so disproportionate as to be in breach of obligations under the Convention. That falls to be determined in a particular case concerning a discrete decision on its own facts.
83. The Minister in exercising his statutory functions under s. 3(1) or s. 3(11) is bound, as already explained, to exercise his discretion in accordance with the Constitution, including ensuring that insofar as any decision constitutes an interference with family rights as guaranteed by the Constitution that it is proportionate. Similarly, having regard to the provisions of the European Convention on Human Rights Act and, in particular s. 3, he is under an obligation to ensure that any such decision is proportionate having regard to the family rights of those affected, including the children, under Article 8 of the Convention.
84. Indeed, in T.C. v. The Minister for Justice, Equality and Law Reform (cited above), the Minister accepted, as noted by Fennelly J. in his judgment, that he was bound to respect family rights as guaranteed by the Convention when considering whether to amend or revoke a deportation order pursuant to section 3(11). Fennelly J. himself stated:-
85. Similar to my conclusions on the question of the constitutionality of these sections, it is also clear that there is nothing in the sections themselves nor in the Act which would restrict the Minister, when making a decision under either subsection, from fully taking into account the Article 8 rights of the family directly affected by a deportation order or a refusal to revoke one, in accordance with the principles laid down in the European Convention.
86. In these circumstances it cannot be said that s. 3(1) or s. 3(11) are incompatible with the obligations of the State under the Convention. Accordingly, this relief is also refused.
87. In the foregoing circumstances the appeal is dismissed.