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Cite as: [2004] IEHC 127

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HC 261/04

THE HIGH COURT

JUDICIAL REVIEW

Record No: 2003 No. 976JR

Between:

Oleg Margine

Applicant

And

The Minister for Justice and Law Reform, Ireland,

The Attorney General, and The Governor of Mountjoy Prison

Respondents

Judgment of Mr Justice Michael Peart delivered the 14^th day of July 2004:

This is an application, pursuant to leave granted by Order of Ms. Justice Finlay Geoghegan dated 23^rd January 2004 for the reliefs by way of judicial review, as set forth in the Notice of Motion herein dated 27^th January 2004, and as further elaborated upon in the Statement Grounding the Application (as amended). Those reliefs are:

A Declaration that the legal and/or constitutional rights and/or rights under the European Convention on Human Rights of the applicant have been infringed;

A Declaration that that the applicant is entitled to remain in the State, or alternatively is entitled to remain in the State pending the determination of his application for residency and/or pending the determination of his application under section 3(11) of the Immigration Act, 1999.

A stay pursuant to Order 84 rule 20(7)(a), or an interim and/or interlocutory injunction restraining the respondents from acting adversely to the rights of the applicant pending the determination of these proceedings.

The applicant sprang to life immediately upon being arrested on the 18^th December 2003 on foot of a Deportation which had been made on the 29^th May 2002. Solicitors were instructed, and an application for injunctive relief to restrain his deportation was urgently prepared and was heard by Ms. Justice Finlay Geoghegan on the 23^rd December 2003, and she gave her decision on 14^th January 2004, granting the relief on certain terms as to the release of the applicant pending the earlier of either the determination of the application for leave, or if leave be granted, any refusal of the substantive application, or any decision by the first named respondent of any decision to refuse the application for residency and/or an application to revoke the Deportation.

In or around May 2001 the applicant arrived in Ireland from his country of nationality, namely Moldova. He completed the ASY 1 form for the purposes of making an application for asylum. It appears that he failed to attend for interview subsequently. His application was considered and was refused. By letter dated 26^th March 2002 he was notified of the proposal to make a deportation order by letter dated 26^th March 2002 which was posted to him at the address notified to the Minister. That letter was not actually received by the applicant since the envelope was returned to the Minister's office marked "gone away".

A Deportation Order was duly made on the 29^th May 2002, and the making of that order was also notified to the applicant by a letter dated 21^st June 2002 sent to the same address. That letter was also returned to the Minister by An Post with a note that there was no answer at the address for delivery. That letter required the applicant to present himself at the Garda Station in Waterford City on the 28^th June 2002 so that arrangements could be made for his deportation. Of course he did not attend since he had not received the notification, and so the statutory procedures marched on, and he immediately fell into the category of an evader and was liable to arrest and detention without warrant, a consequence of non-compliance warned of in the notification, if received.

Nothing more happened following the sending of that notification, until Messrs. Colgan & Company, solicitors, of Chapelizod, Dublin 20 wrote to the Repatriation Unit of the Minister's Department on the 1^st May 2003 with which they enclosed a written and signed authority to act from their client, and which indicated that all further correspondence should be addressed to that firm at their office situated at Iceland Shopping Centre, Le Fanu Road, Ballyfermot, Dublin 10. Curiously, no address for the applicant appears in either the letter from Colgan & Co, or indeed in the authority to act. But it is reasonable to assume that the applicant was residing somewhere in the vicinity of Ballyfermot since that is the branch of Colgan & Co chosen for communication. In that letter Messrs. Colgan & Co had written as follows:

"We have been advised by the RAC that our above-named client's file is with the Repatriation Unit. Could you please advise us as a matter of urgency the status of his case."(my emphasis)

The Repatriation Unit responded promptly to that letter by letter dated 7^th May 2003 pointing out that the applicant had been notified to present himself at Waterford Garda Station for deportation on the 28^th June 2002, but that he did not attend and was then classed as an evader. The letter went to inform the solicitors that their client should therefore make himself known to his nearest Garda Immigration Officer immediately. That of course did not happen, and the next relevant event is simply the arrest of the applicant on the 18t^hDecember 2003 outside the door of 44, Dominick Street, Dublin 1.

Following this arrest, a different firm of solicitors was instructed to act on the applicant's instructions. No reason is given for the change in representation. In a grounding affidavit sworn on the 19^th December 2003 his solicitor states that the first the applicant knew of the existence of the Deportation Order was when he was arrested. That can only be correct if the applicant never went back to Colgan & Co to see if they had any news for him about his application, or if in the absence of any such enquiry from their client, Messrs. Colgan & Co did not make efforts to communicate the position to him. That neither would have occurred seems unlikely in the extreme, especially given the urgency imported into their letter dated 1^st May 2003 to the Repatriation Unit.

Following the arrest of the applicant, his new solicitors wrote to the first named respondent confirming that they now act for him. They also stated that their instructions were that their client is the father of an Irish born child who was born on the 12^th June 2003 - i.e. just over one year after the making of the Deportation Order, and that this therefore constitutes a material change in his circumstances. The Minister was asked in those circumstances to reconsider his decision to deport the applicant, and the solicitors also applied on behalf of their client for a revocation of the deportation order due to those changed circumstances.

It is the position, therefore, that the applicant, following the birth of the child in June 2003 and before his arrest in December 2003 had made no application for residency on the basis of being the father of an Irish born child, or an application for the revocation of the Deportation Order of which his then solicitors had been informed in May 2003 as a result of the request for urgent information as to the status of the applicant's application for a declaration of refugee status.

First of all it has to be noted that the applicant at no time notified the Minister even after the child was born, of the birth of a child of which he is alleged to be the father. It is also a fact of course that the child was not born or even conceived prior to the making of the Deportation order. Nevertheless the applicant submits, through his solicitors affidavit, that "he believes that all the circumstances of his case, including inter alia the fact of his being a parent of an Irish born child, were not adequately or properly considered by the respondents."

A birth certificate for the child in question is exhibited which confirms the date of birth as 12^th June 2003. There is no entry in relation to the identity of the child's father, so it is not apparent from the Certificate that the applicant is the child's father. The address of the mother as shown in the birth certificate is not one at which the applicant has ever deposed that he resided at. But the child's mother has sworn an affidavit in which she gives her address as 44, Dominick Street which is the address outside of which the applicant was arrested on 18^th December 2003, in which she says she has resided at that address since she arrived in this country in June 2002. That is strange given the address for her as appearing in the birth certificate. However, she explains that the reason why the father's name is absent from the birth certificate as follows:

"At the time I was applying for registration of the child's birth I was confused as to the requirements for registration of the father's details. I confirm Oleg Margine is the natural and lawful father of my son. He has lived with Andy and I at the above address since Andy was born and he is involved fully in all the decisions regarding the upbringing of Andy and is participating fully in Andy's day to day activities."

In January 2004 the applicant has sworn the only affidavit in these proceedings sworn by him, and in which he has averred that in January 2004, the mother of the child has made an application to have his name entered on the birth certificate as the father of the child, and furthermore that on the 18^th February 2004 he and the child's mother were married at a Romanian Orthodox ceremony at St. Francis Xavier Church, Upper Gardiner Street, Dublin, and he exhibits a document purporting to be a certificate of that marriage. There has been no civil marriage. Finally, he avers that "as of 14^th January 2004 pursuant to Statutory Instrument 5 of 1998 I have been appointed guardian of my son, Andy Cuzin", and he exhibits a copy of a statutory declaration in that regard.

Applicant's legal submissions:

Mr Seamus O'Tuathail SC on behalf of the applicant makes a number of submissions:

Attention has been drawn to the fact that the applicant is, as claimed, the father of an Irish-born child, and that under the provisions of Article 42.5 of the Constitution the "natural and imprescriptible rights of the child" are recognized, and that if the Deportation Order is maintained, and the applicant is deported not only will his child's right to its father be interfered with, but also his own rights in relation to his child. He drew attention also to the fact that in cases such as A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1, and North Western Health Board v. H.W. [2001] 3 I.R.622, the central position of the family in society, and the high position which rights derived therefrom, enjoy in the hierarchy of constitutional rights, has been fully recognized in this jurisdiction - rights described in Article 41.1.1 of the Constitution as "inalienable and imprescriptible". Counsel has accepted that these rights are not absolute rights but that in his consideration of any matter which could interfere with these rights, the Minister is obliged to consider the circumstances of each case and whether there were grave and substantial reasons associated with the common good which required the deportation of a non-national parent or parents.

Mr O'Tuathail also referred to the European Convention on Human Rights Act, 2003, and in particular to sections 2,3 and 4 thereof regarding the obligation on this Court when applying and interpreting any statutory provision or rule of law, to do so in a manner compatible with this State's obligations under the Convention. In this regard he refers ``

8.1. "Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

He submits that accordingly this Court must recognize the applicant's right to be with his son, and presumably his son's right to the company of his father, in accordance with Article 8.1 of the Convention.

Counsel also referred to fact that in A.O. and D.L. v. Minister for Justice [2003] 1 I.R. 1, Hardiman J. expressed his view that among the matters the Minister was entitled to have regard to when making a Deportation Order was "the length of time a person had been in the State and his or her family or domestic circumstances; to the constitutional rights of all persons, including the Irish born child and the State itself."

It has been submitted that in making the Deportation Order the Minister has failed to properly consider and take account of these matters, and the particular circumstances of this applicant and his family rights. While it has been accepted, as it must be, that these facts were unavailable to the Minister at the time of the making of the Deportation Order, the birth of the child and the marriage to the child's mother taking place after the Deportation Order was made, they are relevant considerations which must now be taken into account now by the Minister before he makes a determination in relation to the application for leave to remain and the revocation of the Deportation Order.

In that regard Counsel also submits that while he cannot insist on an oral hearing in relation to those applications, it is preferable that the applicant be in this jurisdiction while the application is being considered, rather than that he be deported, and that the absence of the applicant from the State while such consideration is taking place would adversely affect the outcome. He also submits that for other reasons also it is preferable that the applicant remain here, namely because he is the parent of the child, he is married to a pending asylum seeker, and the child's own right to the company of his father.

Counsel submitted that there was no overwhelming public policy interest to be protected in this case which could outweigh the applicant's, and his child's, constitutional rights, and that the balance fell easily in favour of not permitting this Deportation Order to be carried out, either at all, or at least until the applicant's application for residency has been determined.

Respondent's legal submissions:

Central to the legal submissions of the respondent is the applicant's own behaviour in relation to the asylum process he was engaged upon. In particular, Mr Paul O'Higgins SC on the respondents' behalf submitted that the applicant had no right to any relief sought in circumstances where he had failed to notify the authorities, as he was required to do, of any change in his address, and which failure led to the situation which arose, namely that he did not receive the notification of the proposal to make the Deportation Order, and the notification of the actual making of the Deportation Order. It was the failure to com[ply with the requirement to present himself to the Garda authorities in compliance with a direction in that regard, which resulted in his arrest unexpectedly outside 44, Dominick Street on the 18^th December 2003. In particular, attention is drawn to the fact that a solicitor wrote to the Repatriation Unit in May 2003 to enquire about the status of the applicant's application, and inspite of being told that a Deportation Order had been made, the applicant again did nothing to make himself known to the authorities. No information was given about his then current address.

Mr O'Higgins submits that this behaviour on the part of the applicant goes to his general bona fides and candour in circumstances where he is seeking equitable relief, and that no effort whatsoever has been made by the applicant to explain how, if it be the case, it came about that he was not aware of the situation after his then solicitor was informed of the making of the Deportation Order.

It is submitted that the Minister is entitled and obliged to uphold the integrity of the asylum system, and that it has been stated many times that an applicant for asylum is not a passive bystander in the process, but an active participant, and that the applicant's behaviour is therefore very relevant to this Court's consideration of this application, especially when it is considering where the balance of justice lies between any rights the applicant may have, and the rights and duties of the Minister in relation to the upholding of the integrity of the asylum system.

Mr O'Higgins submits that the applicant achieves no greater recognition of any family right by reference to the European Convention of Human Rights and Fundamental Freedoms, than from the Irish Constitution. In fact he goes further and submits that the applicant's rights under the latter are, if anything even stronger than derive from the Convention, and therefore that any submission based on the Convention is somewhat irrelevant.

But in this regard, Mr O'Higgins has referred to the judgment of Hardiman J. in P. L. and B v. Minister for Justice [2002] 1 I.R.164, wherein at pages 176-177, the learned judge refers to the right to deport a spouse of an asylum seeker whose application has not yet been finalized as follows:

"In so far as it is submitted that Article 41.3.1 of the Constitution in some way precludes the respondent from deciding to deport one partner while the other's application for leave to remain is pending, I would reject that proposition. If the applicant's wife is successful in avoiding deportation she will be enabled lawfully to remain in the State but she will not therefore be obliged to do so. Only if it were thought arguable that the applicant's marital status restrained the respondent's freedom of action as a matter of law could this aspect of his circumstances avail him on the present application. The State's obligation to protect with special care the institution of marriage and protect it against attack cannot, in my view, be invoked to limit the respondent's discretion in relation to an individual applicant whose application for asylum has been refused."

It is submitted that there is no reason why the applicant needs to be in this jurisdiction while his application for residency is being considered or his application for a revocation of the Deportation Order. In the event of either being successful, the applicant will be permitted to re-enter the State, and in that way he is not prejudiced by his Deportation.

The Minister's position, as submitted by Mr O'Higgins, is that he is required to uphold the integrity of the asylum system, and that the deportation of the applicant on foot of a Deportation Order lawfully made is a proportionate action to take while the applicant's application for residency and for revocation are considered, particularly in this case given the conduct of the applicant. He has referred to the Supreme Courts' judgment in the Article 26 Reference [2000] 2 IR 360 at page 392 where it is stated;

"There is a well-established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible. ………Furthermore, it may be inferred from the Bill and the surrounding circumstances that the early establishment of the certainty of the decisions in question is necessary in the interests of the proper management and treatment of persons seeking asylum or refugee status in this country. The early implementation of decisions duly and properly taken would facilitate the better and proper administration of the system governing seekers of asylum for both those who are ultimately successful and ultimately unsuccessful."

Mr O'Higgins referred to two judgments from the European Court of Human Rights, namely Bouchelkia v. France [1997] 25 EHRR 686, and Abdulaziz v. United Kingdom [1985] 7 EHRR 471. Each of these cases, in different contexts, recognizes the right of a State to control the entry of non-nationals into its territory, while at the same time requiring that right to be balanced against a person's right to family life.

In Bouchelika the applicant had fathered a child after the Deportation Order was made, but the Court found that the appropriate time for assessing the validity of a Deportation Order was the time at which it was actually made.

In the latter case the plaintiff had a criminal record of a serious nature, and it was held that the authorities could legitimately consider that the applicant's deportation was necessary for the prevention of disorder or crime, and that there was therefore a fair balance struck between the family and private life rights of the applicant, and the legitimate aims of the French State, and stated that States have a wide margin of appreciation in relation to Article 8 of the Convention. It also noted that there were no obstacles to that applicant establishing family life in his own country. Mr O'Higgins has submitted that in the present case there has been no evidence produced on this application that there is any difficult for the applicant's setting up their family life in their own country, Moldova.

Counsel has also referred to the judgment of Denham J. in A.O. & D.L. v. Minister For Justice Equality and Law Reform [supra] where she refers to a decision of Court of Appeal in England in The Queen (Mahmood) v. The Secretary of State for the Home Department [2001] UKHRR 30. In his judgment, Laws LJ deals with Article 8 of the Convention and refers to the decision in Abdulaziz which I have mentioned. He states at page 322 in relation to that decision:

"In summary, the court expressed the view (as I read the judgment) that the state owes no duty generally to give effect to a couple's choice of place of residence, and it will be very much up to the state to strike the balance between the requirements of immigration control and the immigrant's freedom to choose how and where he will enjoy his Article 8 rights. I think this is entirely unsurprising. If I were applying Art 8 of the European Convention directly in this case, I would hold that there was no breach of Art 8(1) perpetrated by the Secretary of State whose decision by no means compelled the applicant and his wife to live apart. He was entitled to conclude that it would be reasonable for her, and the children, to accompany him to Pakistan."

In the present case, and in this jurisdiction the right of the State to control and regulate entry to the State has been recognized, and the judgment of the Supreme Court in the Article 26 Reference makes that very clear. Counsel has also referred to a large number of judgments of Courts in this jurisdiction in which the same has been found, and no doubt remains in that regard.

Mr O'Higgins submits that it is a proportionate response to the applicant's situation to require him to leave the country on foot of the Deportation Order, since if his application for leave to remain is granted or if the Deportation Order is revoked, he will be permitted to return. This, he submits is particularly so in the circumstances of this particular case where it is the applicant's own behaviour alone, and his failure to comply with the requirements of the asylum procedures and processes which have led to the problem in the first place.

Conclusion:

First of all, I am completely satisfied that a valid Deportation Order was made in this case, and that the applicant was properly notified of the proposal to make such an order prior to its making, and of its making thereafter, since the Minister complied with the statutory requirement to send such notification to the last address notified to the authorities. That was done, and it is no fault of the part of the authorities that the applicant moved address without complying with his obligation to notify his change of address.

I am also satisfied that the applicant must have been aware of the fact in May 2003 that a Deportation Order was made on 29^th May 2002, because he had obviously gone into his solicitor in May 2003 and asked him to find out what the position was in relation to his application. I note that this letter made no mention of what must have been the case by may 2003 that he was about to become the father of an Irish born child and that he wished that new fact to be taken into account and considered before any Deportation Order was made. In any event, the applicant chose to put his head in the sand, so to speak and continue to lie low until he was eventually arrested as an evader on the 18^th December 2003. If it had been necessary to do so, I would have found it possible to decide that in this case the applicant, by his undisputed conduct, has failed to demonstrate the necessary of candour and bona fides to entitlement him to the relief he seeks. As it happens, this is not the decisive factor since I have decided against him in any event on the merits of the application.

Through new solicitors he has now made applications for residency on the basis of the child and for revocation of the Deportation, and he submits that it is a breach of his constitutional and Convention rights if he is required to leave the country while these applications are considered and determined. I will not set out again the submissions of the Respondent as to why that is not a correct submission. I will confine myself to saying that agree with all the submissions put forward by Mr O'Higgins, and in particular I accept completely the right of the State to control and regulate its borders, and that the Minister is entitled to take such reasonable and proportionate steps to maintain and uphold the integrity of the asylum process as he thinks fit. The objective of upholding the integrity of the asylum process has been strongly recognized as a legitimate objective. In my view it is clear from the majority judgments in the case of A.O. and D.L. v. The Minister for Justice [supra] that that objective was considered to be of sufficient weight to outweigh the asserted family rights, which are not absolute rights, of the applicants.

I am also satisfied that the applicant has no entitlement to an oral hearing in relation to his outstanding applications. In fact his Counsel did not press that point very hard, but relied rather on the desirability of the applicant being in the country for the duration of the time taken to determine these applications. I am satisfied that this consideration does not outweigh the otherwise entitlement of the Minister to put the Deportation Order into effect.

I therefore refuse the reliefs sought.