High Court of Ireland Decisions

F. (P.) & Anor v. Minister for Justice, Equality and Law Reform [2004] IEHC 8 (23 January 2004)

 


THE HIGH COURT

JUDICIAL REVIEW

RECORD NO. 2003 JR 539

BETWEEN:

P.F. AND C.F.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Mr. Justice Murphy delivered the 23^rd day of January, 2004.

1. Pleadings – History

The applicants are respectively an Irish citizen and a Romanian national who were married on the 11^th November, 2002.

By notice of motion dated the 24^th October, 2003, the applicants sought an interlocutory injunction restraining the respondent from failing to readmit the second named applicant to this jurisdiction and from failing to take all steps necessary to secure such readmission.

The grounding affidavit of James Watters, solicitor for the applicants was filed the 24^th October, 2003. That affidavit referred to the necessity of having the Department's file and his application under the Freedom of Information Act, 1997, which was complied with on the 29^th September, 2003.

The deponent referred to counsel's advice having received the papers and information disclosed, that it was necessary to have a consultation with the second named applicant who had been deported to Romania on the 14^th April, 2003, pursuant to a Deportation Order dated the 25^th April, 2002, the applicants having married on the 11^th November, 2002.

Application for leave came before Gilligan J. on the 21^st July, 2003, who directed that the matter be on notice to the respondent.

When the matter came before this court on the 17^th December, 2003, it was agreed that, in addition to the motion, the court could deal with the application for leave for judicial review.

Any application for injunctive relief especially by way of mandatory relief which, in essence, is what the applicants seek, must be based on an arguable case.

2. Application for Judicial Review

The applicants seek an order (inter alia) of certiorari quashing the decision of the respondent dated the 3^rd July, 2003, to refuse to revoke a deportation order.

3. Background

The applicants were married on the 11^th November, 2002. The first named applicant was born on the 10^th October, 1965 in Dublin and is employed as a telephonist. The second named applicant was born C.U., in Romania, on or about the 21^st February, 1966. She had been married in Romania on the 21^st August, 1988 to N.P.

In his affidavit sworn 21^st July 2003 the first named applicant said that his wife came to Ireland about December, 1999, falsely claiming to be an Italian, A.G., and that she continued to use that name from time to time in Ireland. She did not have a work permit. He believed that she made an application for asylum under C.P., her married name in Romania.

The applicants met in November, 2001. The first named applicant said that he "moved in" with the second named applicant in about March or April, 2002. On the 19^th May, 2002 she "moved in" with the first named applicant and resided at his address until the 12^th March, 2003 when the second named applicant was detained on foot of a Deportation Order made against her on the 25^th May, 2002, some ten months previously.

The second named applicant was deported to Romania on the 14^th March, 2003. The applicants had, accordingly been married and living together for four months, having lived together for eight months previously.

The first named applicant believed that his wife had applied to the respondent for residency in her correct name based on marriage. He relies on a copy of a letter from Lisa Croker, dated the 14^th January, 2003, incorrectly addressed to her as Ms. Gianluca and on a further letter from Maureen Connolly Solicitor of Colgan & Co., Solicitor for the applicants to Lisa Croker dated the 30^th January, 2003.

The first named applicant travelled to Romania on the 6^th April, 2003, having (on his wife's behalf) sought revocation of the Deportation Order. He returned to Ireland on the 18^th April, 2003. He again travelled to Romania a month later, remaining there for some two weeks. Accordingly he spent a further period of less than a month with the second named applicant.

By letter dated the 3^rd July, 2003, the respondent refused to revoke the Deportation Order on the basis that the parties had not resided together as a family unit for an appreciable period of time since deportation. The letter also referred to the second named applicant's use of a false name and illegal employment.

The second named applicant had given a letter of authority to the first named applicant's solicitors, Colgan & Co., and in particular, to Maureen Connolly of that office.

The State contends that Ms. C.P. was deported on the 14^th March, 2003 under a valid Deportation Order following examination of her case under s. 3 of the Immigration Act, 1999 and s. 5 of the Refugee Act, 1996.

4. Correspondence

By undated letter to the immigration division, the second named applicant (née Uilacon) applied for a permit to live in Ireland saying that she had entered in December, 1999, was not an asylum seeker and did not have a PPS number. She said that on 11.11.2002 she married with P.F., the first named applicant, an Irish national.

The first named applicant wrote an undated letter to Lisa Croker of the respondents, saying that his wife (C.U.) had never applied for asylum and was not registered with the Garda National Immigration Bureau and asked for her Department of Justice number.

The letter of the 28^th May, 2003, written to the applicants' then solicitors, stated as follows:-

"Re C.P.:

Dear Sirs,

I am directed by the Minister for Justice, Equality and Law Reform to acknowledge receipt of your letters of the 8^th April and 26^th May, 2003, regarding the above.

Miss C.P.'s marriage to Mr. F. is a matter for Immigration Operations and any enquiries regarding this or an application for a re-entry visa should be addressed to that section. I am forwarding a copy of your correspondence of the 8^th April, 2003 to that section for attention.

Miss C.P. was deported on the 14^th March, 2003 under a valid Deportation Order following an examination of her case under section 3 of the Immigration Act, 1999 and section 5 of the Refugee Act, 1996. Every consideration has been given to Miss C.P.'s case and her removal took place in the interests of upholding the integrity of the asylum and immigration laws. The Department will give no undertaking to revoke the Deportation Order in respect of Miss C.P.

28 of May 2003."

The letter of the 3^rd July, 2003 was as follows:-

"Re, your client, C.P. Romanian National:

I am directed by the Minister for Justice, Equality and Law Reform to refer to your request for revocation of the Deportation Order which was signed against your client on the 25^th April, 2002, and subsequently enforced on the 14^th March, 2003.

Having considered this application, I am to inform you that the Minister has decided to refuse revocation of the order in question, on the grounds that:-

1. Miss C.P. Mr. F. have not resided together as a family unit for an appreciable period of time since the date of Miss C.P.'S deportation.

It should also be noted that:

(a) Miss C.P. initially entered the State using a false identity and false documentation reflecting same. She subsequently claimed asylum under her real identity. The competent authorities were not, at any stage, informed of her initial mode of entry into the State, and as such, Miss C.P.'s 'dual identity'.

(b) Miss C.P. actively pursued this false identity as she was, according to your letter dated the 8^th April, 2003, employed in the State under this false identity, and as such therefore, working illegally.

(c) Miss C.P. knowingly and continuously misled this office regarding her immigration status in this State.

Accordingly, the Deportation Order signed in respect of Miss C.P. shall remain in force.

Lisa O'Connor

3^rd July, 2003."

3. Evidence on behalf of the Applicants:

I have considered the affidavits of the first named applicant dated the 21^st July, 2003 and the 24^th October, 2003 and the affidavits of the applicants' solicitor, Mr. James Watters, dated the 24^th October, 2003 and the 16^th December, 2003.

By affidavit sworn the 21^st July, 2003 by the first named applicant, the above facts in relation to the applicant's claim were sworn exhibiting the above mentioned letters, the tickets in relation to the first named applicant's stay in Romania and the birth certificates and marriage certificate of the applicants. The first named applicant says that the respondent erred in law in deciding not to revoke his wife's Deportation Order in that the respondent failed to have regard to other relevant factors, especially the length of time the parties had known one another before the deportation. The reliance on his wife's conduct was not advanced as grounds for the respondent's decision.

In the circumstances, the applicant sought leave to apply for judicial review by way of an order of certiorari quashing the decision of the 3^rd July, 2003 on the grounds set out in the statement dated the 21^st July, 2003.

By Notice of Motion dated the 29^th October, 2003, the applicants sought liberty to amend their statement of grounds and for an injunction to seek the re-admission of the second named applicant to the State, pending the final disposal of the proceedings.

A letter of authorisation had been give by the second named applicant to the solicitors. No affidavit was filed on her behalf.

A second affidavit, that of James Watters, solicitor for the applicants, was sworn on the 24^th October, 2003, grounding the Notice of Motion in respect of the interlocutory injunction. Reference is made therein to an application made on the 21^st July, 2003 for relief to apply for judicial review.

The affidavit also referred to the applicant's file which was requested on the 13^th August, 2003 and complied with that request on the 29^th September, 2003. In relation thereto, the applicants' solicitor says that counsel then advised that it was necessary and was in the second named applicant's interest that a consultation be arranged with her regarding certain matters, for example, in relation to the names she went by when she was previously in Ireland, her initial application for residence and the documents served on her when arrested. For that purpose the applicants submitted that the balance of convenience favoured the re-admission of the second named applicant to the State.

A second affidavit of James Watters, sworn and filed on the 16^th December, 2003, exhibited the deportation order dated the 25^th April, 2002 and the notice under s. 3(3)(b)(II) of the Immigration Act, 1999, dated the 3^rd May, 2002.

6. Applicants' Submissions

The applicants relied on several passages in Malsheva v. Minister for Justice Equality and Law Reform (Unreported, High Court, Finlay Geoghegan J., 25^th July 2003) to substantiate their argument that the State should have considered the marriage before executing the deportation order. In that case the applicant was a Russian student who had a valid visa, based on her marriage to an Irish citizen which was valid to 13^th August 2003. A deportation order had been made by the Minister on the 25^th February 2003 and effected on 9^th April 2003. She had been married on 6^th August 2002. The applicant had not complied with the Section 3 notices to turn up at specified places for the purposes of effecting her deportation. Finlay Geoghegan J. stated:

"Having regard to the family rights recognised by Article 41 of the Constitution, to which I have already referred, it appears to me arguable that the applicants on the 6^th April, 2003, the date upon which the first-named applicant was arrested for the purpose of deportation, enjoyed such rights. Also having regard to the foregoing facts to which I have referred, the authorities who arrested the first- named applicant, who appeared to have been the Gardaí and any Immigration Officer dealing with the deportation order of the first named applicant, was on notice of the fact of the marriage of the first named applicant to an Irish citizen."

"The fact that the first-named applicant was married to an Irish citizen is what is relevant. It appears to me that at that stage that it is certainly arguable in law that the Minister, through his servants and agents, was under an obligation to take into account the then family rights of the first-named applicant and her Irish citizen husband, prior to effecting the Deportation Order; therefore, it appears to me that there is an arguable case in law that the deportation effected on the 9^th April was illegal by reason of the failure of the first-named Respondent, its servant or agent, to consider the constitutional rights of the applicants between the 6^th and the 9^th April prior to effecting deportation and, therefore, I will grant leave insofar as that relief is sought."

(page 10-11).

The first and most fundamental submission made on behalf of the applicants in the present case is similar to that in Malsheva: does the fact of the marriage of the second-named applicant to an Irish citizen give her an absolute or any right to reside in Ireland with her spouse given the recognition of family rights in Article 41 of the Constitution.

Counsel for the applicants says that as a consequence of that constitutional right the deportation order in this case, which had predated the applicant's marriage, automatically became invalid on the date of their marriage.

7. Respondent's Submissions

7.1 The State opposed the application to amend grounds as it was not promptly made. The additional relief sought in the amended statement of grounds was for a declaration that the respondent had acted illegally in effecting the second named applicant's deportation on the 14^th March, 2003 and the interlocutory relief seeking her re-admission.

The State contended that a consideration of promptness requires the applicant to take an active part in the asylum and immigration processes.

7.2 The State contended that the applicants had failed to act with due diligence and promptness in relation to the application to amend and in relation to the lateness of exhibiting of the deportation order and notice. These were matters which were known to the applicants since November, 2002 but not exhibited until December, 2003. It was incumbent on the applicants to explain the reason for delay in raising the application for residency. Muresan v. Minister for Justice Equality and Law Reform and Others (Unreported, High Court, Finlay Geoghegan J., 8^th October, 2003)

The State opposed the application for leave on the basis of G. v. D.P.P. [1994] 1 I.R. 374.

No challenge was made to the Deportation Order in respect of the second named applicant.

The marriage of a person in respect of whom a Deportation Order has been made does not invalidate the Deportation Order, see Malsheva v. Minister for Justice, Equality and Law Reform, (Unreported, High Court, Finlay Geoghegan J., 25^th July 2003).

7.3 The State contended that it is only where the effect of the deportation order was suspended by legal means then the action of the executive in giving effect to the order was unlawful. In Okoroafor v. Governor of Cloverhill Prison (Unreported, Supreme Court, 10^th October, 2002) an application by a person to whom asylum had been refused for permission to make a further application for asylum under s. 17 of the Refugee Act, 1996, though based on a well-founded fear of persecution for a convention reason did not suspend the effect of the deportation order made against him.

If such a person is refused re-admission then, the marriage of a person in respect of whom a deportation order has been made cannot entitle that person to re-admission on the basis that the person's marriage is to an Irish citizen.

The State argues that Malsheva should be distinguished as the applicant in that case had a valid visa to enter and remain in the State for a particular period during which the deportation was effected. In the present case, the respondent had only knowledge of the application for residency which it was submitted could not affect the power to deport.

7.4 The State referred to R. (Mahmood) v. Home Secretary [2001] 1 WLR 840, where the Court of Appeal summarised the relevant European case law. Article 8 of the European Convention on Human Rights does not impose on the State any general obligation in respect of the choice of residence of a married couple. The removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to be excluded, even when this involves a degree of hardship for some or all of the members of the family. However, Article 8 is likely to be violated by the expulsion of a member of a family who has been long established in the State if the circumstances are such that it is not reasonable to expect the other members of the family to follow the member expelled. Knowledge on the part of one spouse at the time of marriage, that rights of residence of the other were precarious, militated against a finding that an order excluding the latter's spouse violated Article 8. Whether interference with family rights is justified in the interest of controlling immigration will depend on the facts of the particular case and the circumstances prevailing in the State whose action is impugned.

In relation to the application for an interlocutory injunction the State submitted that, even if leave were granted, the applicants must disclose a "fair question to be tried", that the balance of convenience favours the granting of an injunction and that there are no discretionary factors affecting the granting of such equitable relief. The State submits that in the absence of special facts or circumstances referred to in the Mahmood case, there can be no "fair question to be tried".

In relation to the balance of convenience, the present application must be distinguished from Malsheva. In that case the interlocutory injunction was granted on the basis that the respondents had sought to admit evidence of an absence of clean hands on the part of the deportee. It was held that the applicant was prejudiced in her ability to deal with and respond to the allegations made by the respondent.

In the present case, the State submits, it has not introduced any evidence. There can be no prejudice to the deportee in dealing with any submission made as to the court's discretion, as that evidence had been introduced on her behalf.

In any event it is submitted that the court should exercise its discretion against granting an injunction because of the behaviour and delay of the second named applicant.

8. Decision of the Court:

The net issue which emerges from the facts in this case is whether the respondent should have considered the changed circumstances of the second named applicant between the making of the Deportation Order and its execution. The order was made on the 25^th May, 2002; the applicants were married on the 11^th November, 2002 and on the 12^th March, 2003 the second named applicant was detained and deported two days later. The first named applicant says that his wife, the second named applicant, had applied for residency in her correct name based on her marriage. Her solicitor's letter dated the 30^th January, 2003, requesting permission to remain in the State on the basis of her marriage to an Irish national, stated that she was never registered as an asylum seeker and so therefore did not have a Department of Justice identification number. That letter referred to the client as Miss C.P. (U) F., but did not mention the Romanian married name, C.P., in relation to whom the Deportation Order was made on the 25^th April, 2002 and the notification made on the 3^rd May, 2002. Indeed, the letter of authority dated the 30^th January, 2003 is also silent with regard to her Romanian married name.

It should be noted that the letter of the 3^rd July, 2003, containing the decision the subject of the application for certiorari does refer to C.P. (U.) and gives the reference 69/530/00. The previous letter of the 28^th May, 2003 also contains that reference and directs the applicants' solicitor to Immigration Operations regarding any enquiries or an application for re-entry.

There was no evidence of any such application for a re-entry visa being made to Immigration Operations.

It seems to me that the reliance on Malsheva is not, in the circumstances, appropriate. There a valid visa existed at the time a Deportation Order was made.

Moreover, it seems to me that the right to reside in a particular place of the individual's choice cannot be a fundamental or constitutional right of a citizen, whether he be married or not.

While it appears that the first named applicant may have been unaware of the extent of his wife's false identity when he met her or, indeed, at the time of the marriage, he was aware of the precarious nature of her status in this jurisdiction.

It does seem to me in this regard that the English Court of Appeal decision in R. (Mahmood) v. Home Secretary [2001] 1 WLR 840 applies.

Even if there were a right, it does not seem to me that this can prevent the imposition of sanctions of the law in the administration of justice in relation to asylum seekers. A further application is Okoroafor above does not suspend the effect of a deportation order.

Section 5 of the Illegal Immigrants (Trafficking) Act 2000 requires that there must be substantial grounds for asserting that the Deportation Order is invalid before a judge can grant leave to challenge the validity of a Deportation Order. Moreover the requirement of promptness applies in any application for judicial review.

It would seem to follow that the applicant must take a responsible part in the process or, alternatively, explain to the court his or her not participating in the asylum process. There has been no such explanation given in the present case. Moreover, the non-disclosure of the application in a different name lacks frankness.

In the context of residency rights of an alien married to an Irish citizen, or whose children are Irish citizens, the courts have accepted the premise that Articles 41 and 42 are applicable. There would appear to be varying views as to the extent of the State's power to curtail such rights. In both Osheku v. Ireland ^[1]and in Fajujonu v. Minister for Justice ^[2] the High Court held that a male alien, who was otherwise liable to deportation, could acquire an immunity from such deportation if he married an Irish citizen. In the former case, Costello J. (as he then was) expressed the view that the Minister's power to order deportation in such circumstances was a permissible restriction on the rights of the family. (See also Pok Sun Shum v. Ireland ^[3] and Osayende v. Minister for Justice, Equality and Law Reform ^[4]). Aliens, who are otherwise liable to deportation cannot acquire an immunity by marrying an Irish citizen. It was agreed by counsel that there appears to be no authority which supports the proposition that an Irish citizen my have a constitutional right under Article 41 of the Constitution to reside with his or her spouse in this jurisdiction. In Malsheva v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 25^th July, 2003), Finlay Geoghegan J. accepted that there is an arguable case in law which might amount to substantial grounds that the rights of a spouse who is an Irish citizen to enjoy the company of his or her spouse in Ireland may be different and stronger to children's rights identified in Osayande, Lobe and Others v. Minister for Justice, Equality and Law Reform ^[5] However even if such a right does in fact exist it would probably not be an absolute right. Family rights under the Constitution may thus be indirectly restricted in accordance with law as in the case of imprisonment.

The Irish Nationality Citizenship Act, 1986 was enacted on 1^st July, 1986. Section 3 of the Act provides that any person who is an alien at the date of his or her marriage to a person who is an Irish citizen "shall not become an Irish citizen merely by virtue of the marriage" but may do so by lodging, not earlier than three years from the date of the marriage, a declaration with the Minister for Justice or with any Irish diplomatic mission or consular office, accepting Irish citizenship as post-nuptial citizenship, provided that:

(a) the marriage is subsisting at the date of the lodgement of the declaration, and

(b) the couple are living together as husband and wife and the spouse is an Irish citizen submits an affidavit to that effect when the declaration is being lodged.

Thus, Irish citizenship can now be acquired by either a man or a woman following upon their marrying an Irish citizen but such citizenship can only be acquired by virtue of marriage, three years after the date of marriage and the marriage must still be 'subsisting' at the date when the necessary declaration is lodged and the couple must be living together as husband and wife.

It is in this context that the correspondence between the parties is explicable and relevant. The parties have not been married for three years. No application can be made until after 11 November 2005 at which time the marriage must be subsisting and the parties must be living together.

The applicants are out of time in relation to the Deportation Order. In this light there would seem to be no fair question to be tried even if the court were to allow the amendment to the grounds.

In the circumstances, the application is premature. Even if there were no such time limit nor such procedure the applicant should have sought a re-entry visa such as was suggested by the respondent's letter of 28^th May, 2003.

In the circumstances I refuse the application for leave. I also refuse the further reliefs sought to amend the statement of claim and for interlocutory relief.

Note 1   [1986] I.R. 733, [1987] I.L.R.M. 330    [Back]

Note 2   [1990] 2 IR 151, [1990] I.L.R.M. 234    [Back]

Note 3   [1986] I.L.R.M. 593    [Back]

Note 4   [2003] 1 I.R.     [Back]

Note 5   ibid    [Back]