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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> N. -v- MJELR & Ors [2008] IEHC 402 (28 November 2008)
URL: http://www.bailii.org/ie/cases/IEHC/2008/H402.html
Cite as: [2008] IEHC 402
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Judgment Title: N. -v- MJELR & Ors Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 402 THE HIGH COURT 2005 739 JR
U. N. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS AND
HUMAN RIGHTS COMMISSION NOTICE PARTY
1. The applicant is seeking leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform (“the Minister”) to make a deportation order in respect of her. Background Extension of Time The Submissions 5. The respondents have sought to distinguish the facts of Butusha, Abdukhareem, and EB (Kosovo) from the facts of the present case. They contend that the Minister is obliged to consider the matters set out in s. 3(6) of the Immigration Act 1999 only “so far as they appear or are known to the Minister” and it is contended that the Minister complied with that obligation. It is submitted that the applicant could have made additional representations at any time indicating that her circumstances had changed, but she did not do so. Reliance is placed in that regard on Lupascu v. The Minister for Justice, Equality and Law Reform [2004] IEHC 400, where Peart J. held that applicants are not simply an inactive or passive participant in the process. Rather, he said, applicants are obliged to act in their own interests; they cannot sit back and wait for things to happen and later complain in that regard. The Court’s Assessment 7. The delay in this case between the receipt of the applicant’s representations seeking leave to remain and the making of the deportation order ran to some two years and nine months. This period of inordinate delay is a matter of great concern to the Court; such delay is most undesirable. As this Court has noted on several occasions, it is of the utmost importance that those who apply for the protection of this State are given an answer within a reasonable period of time, and that their application is determined promptly and with due expedition. It is most unfair to leave applicants waiting in a legal limbo. Strangers in a foreign country and unfamiliar with local customs, these people are highly vulnerable in a foreign country. To leave such people without a decision for extended periods of time is to heighten the uncertainty and stress to which they are already exposed. The following statement of Lord Bingham in the House of Lords’ decision in EB (Kosovo) (cited above), is illustrative of the effects of such uncertainty:- “An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order.” (page 185) 8. That said, account must be taken of the fact that the delay has not, in the present case, resulted in any prejudice being caused to the applicant. In each of the cases upon which the applicant has sought to rely, i.e. Butusha, Abdukhareem and EB (Kosovo) (cited above), the respondent’s delay resulted in prejudice to the applicant. In the present case, there were no relevant or significant changes in the applicant’s facts or circumstances between 2002 and 2005. Although not strictly relevant, it is of note that since 2005, there has been what might be described as a significant change in the applicant’s private and family life: in August, 2008, she married a man who is not an Irish national but has, it seems, been working in the State for the past eight years. On that basis, an application has been made seeking revocation of the deportation order; the Minister’s decision is currently awaited on that application. That notwithstanding, however, no such changes had occurred prior to the making of the deportation order such that the Minister’s delay could be said to have prejudiced the applicant. In the circumstances, in the absence of prejudice, I am not satisfied that substantial grounds have been established and, accordingly, I must refuse leave.
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