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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (I.) & Anor v. Minister for Justice, Equality and Law Reform [2002] IEHC 150 (8 March 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/150.html
Cite as: [2002] IEHC 150
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2002/120JR
BETWEEN
Applicants
Respondent
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED THE 8TH DAY OF MARCH 2002:
MR. JUSTICE SMYTH: To the extent that the facts in-this case can be established it appears that the first-named Applicant entered this State in or about February 1999 and sought refugee status. He was not successful in that regard. His then solicitors made an application on his behalf for leave to remain in the State on humanitarian grounds under the provisions of Section 3(6) of the Immigration Act 1999. To the extent pertinent to the present purposes the letter of application dated 12th June 2001 (inter alia) states as follows:
"1. The Applicant is a young ethnic Albanian from Kosovo who came to Ireland in May 1999 to escape the Albanian Serb conflict.
3. ... Mr. M. has lost all contact with his family and relatives in Kosovo.
5. Mr. M. is engaged to an Irish woman. Her name is Emily Hennessey of Flat 4, 130 Tritonville Road, Sandymount Dublin 4 and she is anxious that Mr. M. be allowed to remain in this country. Her testimonial is enclosed. They are committed to each other.
7. The Applicant left school when he was 18 and worked in construction and played football in Kosovo.
8. The Applicant previously was forced to leave his home and family in Kosovo".
From the foregoing it would seem reasonable to deduce that in the event of deportation he should expect to be returned to Kosovo. Indeed a further letter of 15th June 2001, following the letter of 12th June 2001 draws attention to "Council of Europe, Parliamentary Assembly recommendation 1509(2001) dated 25th April 2001 which noted that the security of persons and property is still not guaranteed in Kosovo." Furthermore Miss Hennessey states in her testimonial that his home town is Peja where he "would like to return to sometime in the near further". This in brief is the factual background before the making of any Deportation Order.
A Deportation Order was dated 20th August 2001 and a letter of Notice of making thereof and the reasons therefor are set out in a letter dated 24th August 2001. The letter expressly states:
"The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section (6) of the Immigration Act 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State."
The letter required the first-named Applicant to present himself on 31st August 2001 at 2.30 pm to the Garda National Immigration Bureau to make arrangements for his deportation from the State.
On 31st August 2001 the solicitors now on record in these proceedings were instructed to act for the first-named Applicant. The correspondence makes it clear that both client and solicitor had both Deportation Order and Letter of Notice of 24th August 2001 and when writing on 31st August 2001 to the Repatriation Unit of the Respondent the first-named Applicant is referred to as Kosovo national. Letters of 31st August and 3rd and 4th September 2001 were written by the solicitor to seek to put together a file that would give a composite or comprehensive history to date in written form of all steps taken from the date of arrival in the State to August 2001. The urgency of the matter was appreciated and the possibility of a judicial review application adverted to. Copies of the Section 3(6) representations were sent to the solicitors on 3rd September 2001. The balance of the relevant papers became available on 5th and 7th September 2001 respectively.
It is averred in the second affidavit of the solicitors sworn on 5th March 2002, paragraph 7 as follows:
"On or about the 8th September I was appraised of the Supreme Court decision in the P.B&L matter which lead me to believe that the pursuit of a judicial review application in the facts of this case, as I had at that stage understood them to be, would prove fruitless".
The Supreme Court decision of 30th July 2001 was widely publicised in the national newspapers on 31st July 2001 and the solicitor was a solicitor on record in those proceedings (see [2002] ILRM 16, 38 in particular page 48).
The first-named Applicant did on the 14th November 2001 marry the second-named Applicant who is an Irish citizen.
On 4th December 2001 the second-named Applicant attended the solicitor's office and informed him of the marriage. She, it is averred "indicated" to the solicitor that the first-named Applicant was Albanian not Kosovar. At this stage over some three months after an appreciation of the urgency of a judicial review application - no application is indicated, or apparently instructed - rather an enquiry as to the identify of the first-named Applicant's origins is undertaken.
In terms of communicating with the Respondent as to (a) the marriage and (b) the possible mistaken identity of origin of the first-named Applicant nothing was done until Friday, 1st March 2002 (a full six months after the first-named Applicant was due to have attended to make arrangements for deportation) when the second named Applicant attended at the office of the solicitor and informed him that the first-named Applicant was detained in custody awaiting deportation and that they were married and at it was intended that he would be deported to Kosovo when, in fact, he was Albanian. There then followed a sudden flurry of activity in which:
(A) The Garda National Immigration Bureau were notified that the solicitor was instructed that:
(i) the first-named Applicant was married to an Irish national. He had been instructed to apply for residency on that basis (a copy of the marriage certificate was supplied).
(ii) the first-named Applicant was not a Kosovo national but an Albanian national.
(B) the State solicitor was informed by telephone of the intention to institute judicial review proceedings. The State solicitor intimated that the Respondent's department intended proceeding with the deportation in the absence of identity of the first-named Applicant.
(C) The various steps taken to acquire proofs, instruct counsel, have documents prepared between Friday, 1st and Monday 4th March 2002 are not in dispute.
By the time counsel were in a proper position to apply to the court ex parte before Caoimh J.) the first-named Applicant had been deported. O Caoimh J. declined injunctive relief on the basis that the first-named Applicant was outside the jurisdiction but gave leave to issue short notice on notice to the Respondent to this court for Wednesday, 6th March 2002 at 2 pm.
The reliefs sought from the court are (a) an extension of time and (b) leave to apply for judicial review. It was appreciated that for all practical purposes what could and would be urged on a full application would not be appreciatively different than that put before the court for the leave application and that what effectively was being sought from the court were declarations set out at numbers 4 and 5 in the Statements of Grounds dated 4th March 2002. The mechanism for bringing the matter before the court provided for in section 5.2 of the Illegal Immigrants Trafficking Act 2000, is Order 84 of the Rules of the Superior Courts which not only covers certiorari and mandamus but also embraces declarations (see Order 84 Rule 18(2). Altogether to what has been stated by the Supreme Court in the Illegal Immigrants Trafficking Bill 1999[2000] IR360 at 372, and following and in particular 388 to 395. Both DPP -v- District Justice McDonnell (High Court, unreported 1st October 1999) and DPP -v- Johnson [1988] ILRM established that the court may decline to deal with an application in circumstances where it has not been brought promptly even though it has been brought within the time period stipulated.
Mr. Hogan SC presented the case for the Applicant with great eloquence and stated that the basis of the application was that the Applicants (the second of whom was an Irish citizen), were married, had elected to make and have their matrimonial home within the State and for some time and more particularly since being married on 14th November 2001 had lived and held themselves out as a man and wife and the Ministerial Deportation Order was an attack on the constitutional status, guarantees and rights of the family. His argument was based principally on the provisions of Article 41 of the Constitution and he contended that one of the fundamental features of marriage was the living together of the husband and wife, and that the Deportation Order had as its effect in the instant case, the prohibition on the first-named Applicant living in the State and of depriving the second-named Applicant, (the Irish citizen) from asserting her constitutional rights to the custody(sic) care and society of her husband. While conceding that the decision in Fajujonu -v- The Minister for Justice [1990] ILRM 234 was a decision primarily based from the perspective of the children, the general tone and tenor thereof were supportive of the special rights of the family as "the natural primary and fundamental unit of society". Furthermore he had laid particular stress on that passage of the judgment of Walsh J. (at page 242) as follows:
"In my view, he [the Minister] would have to be satisfied, for stated reasons, that the interests of the common good of the people of Ireland and of the protection of the State and its society are so predominant and so overwhelming in the circumstances of the case that an action which can have the effect of breaking up this family is not so disproportionate to the aim sought to be achieved as to be unsustainable."
He cited further passages from the unreported judgment of the Supreme Court in North Western Health Board -v- W (8th November 2001) in particular from the judgments of Murphy J. (page 8) and Murray J. (pages 5 to 8) on the importance of the "autonomous nature" of the family and urged that in the absence of very special circumstances policy considerations cannot supersede the constitutional guarantees in favour of the family. The case made was that the constitutional rights were something approaching absolute rights and that the acts referable to asylum, refugee or immigration matters must in their operation respect the choice of the couple in the instant case to live in Ireland.
Mr. O'Higgins SC in a spirited reply submitted that the deportation process was exhausted and that there was a conscious decision not to challenge the Deportation Order until 1st March 2002, some six months after both solicitor and client were aware thereof. The discrepancy in paragraph (4) of Mr. Watters' affidavit of 4th March 2002 and in paragraph 8 of his affidavit of 5th March 2002 and indicate both the question of "country of origin" of birth and the marriage certificate were known as sworn to on 4th December 2001, yet not even a marriage certificate was forwarded to the Respondent until 1st March 2002. The Respondent without expressly referring to Eire Intercontinental Trading Company -v- Clonmel Foods 97 ILRM 35 at 39 adopted as appropriate the following matters for consideration in determining whether time should be extended:
1. The Applicant must show that he had a bona fide intention to appeal formed within the permitted time. In the instant case it was submitted that not only was this not so, but a contrary conscious decision was made.
2. He must show the existence of something like mistake and that mistake is to procedure and in particular the mistake of counsel are solicitor as to the meaning of the relevant rule was not sufficient. The contention {borne out by the facts as I find them to be) was that there was no mistake and if there was a failure to appreciate the legal position (paragraph (7) of Mr. Watters' affidavit of 5th March 2002) this is no excuse for not acting within time.
3. He must establish that an arguable ground of appeal existed. It is contended that had this does not exist as there is no right of the second-named Applicant to have the first-named Applicant reside in the State.
It is common case that in the light of the Supreme Court decision in GK -v- The Minister for Justice, Equality and Law Reform (unreported 17th December 2001) applies and that in considering an extension of time application the overall merits of the application should be taken into consideration. (This I do).
It was submitted that the decision both in Pok Sun Shun -v- Ireland [1986] ILRM 593 and Osheku -V- Ireland [1987] IRLM 330 were applicable in the instant case which was clearly distinguishable from Fajujonu where there was a well established family which had resided for an appreciable time in the State with a number of dependent children with varying degrees of integration in the community. It was contended that the following passage of the judgment of Walsh J. (at page 241 of the IRLM report) is in point:
"Unlike the other cases mentioned the parents in the present case did not enter the country by reason of any false statement, misrepresentations or deceits."
The Respondent draws attention to the following anomalies or irregularities:
1. The name - M. or M.. If the correct name is M. the validly of the marriage and the marriage certificate could be an issue (Family Law Act 1995, Section 32(1)(a)(ii).
2. The nationality - Albanian or Kosovan.
3. Miss Hennessey's testimonial refers to his hometown as Peja whereas it appears to be Gramsh.
4. Miss Hennessy's testimonial of June 2001 refers to having met the first-named Applicant one year and six months ago; whereas in her affidavit sworn on 5th March 2001 she avers-"I say I met the first-named Applicant two and a half years ago in February 1999 and that we have been in a continuous relationship since that date".
This maybe partially explainable, but the letter under Section 3(6) refers to entry in the State in May 1999.
The Respondent says that altogether from being out of time that there are no substantial grounds for contending that decisions and determinations refusals, or order in this case are invalid and ought to be quashed and that most particularly the application is grossly premature:- that the Minister was in all the factual circumstances of the case not given a fair and reasonable opportunity to consider the miscellaneous matters put to him on 1st March 2002 and thereafter. I am satisfied and find as a fact that this is so. It is submitted that deportation has taken place for legitimate policy reasons and that in all the circumstances it was a reasonable and permissible decision of the Minister.
Notwithstanding the very able arguments put forward on behalf of the Applicants I am persuaded by the factually grounded contentions of the Respondents which are legally correct. In my judgment the delay in bringing these proceedings is neither satisfactorily explained or excused. Furthermore as indicated in P.B&L -v- The Minister for Justice, Equality and Law Reform and others (earlier recited) and adopting Mass Energy Limited -v- Birmingham City Council [1994]
Environment Law Reports, 298 per Glidewell LJ (at page 307-308) I am satisified that the application should be refused. I dismiss the application.
THE JUDGMENT CONCLUDED