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Seredych v Minister for Justice & Equality [2019] IEHC 730 (29 October 2019)
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[2019] IEHC 730
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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 730
[2019 No. 356 J.R.]
BETWEEN
IVAN SEREDYCH
AND
THE MINISTER FOR JUSTICE AND EQUALITY
(NO. 3)
APPLICANT
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of October,
2019
1. The applicant arrived in Ireland from Ukraine in May, 2011 and was granted residency as
the father of an Irish citizen child born to him and his first wife in 2001. On 15th July,
2002 he was convicted in the District Court of having no insurance, with four other
charges taken into account. In 2006 or 2007 he divorced his first wife and around that
time, or in 2008, he met and began cohabiting with a Lithuanian woman. She had three
children from a previous relationship and became a naturalised Irish citizen in 2014. On
the night of 9th to 10th June, 2012 the applicant committed the offence of sexual assault
in the course of acting as a taxi driver.
2. In July, 2015, the applicant and his second wife had their first child and the couple then
married on 23rd September, 2015. In November, 2015, the applicant was convicted of
the offence of sexual assault in the Circuit Court, after contesting the charge and
attacking the evidence of the injured party, which of course he was entitled to do. He
was then sentenced to three years’ imprisonment. A second child was born in 2016. His
appeal against conviction was dismissed in D.P.P. v. Seredych [2016] IECA 415
(Unreported, Court of Appeal, 3rd November, 2016).
3. A deportation order was made on 8th February, 2018. On 13th February, 2018, the
applicant’s solicitor Ms. Wendy Lyon, then of KOD Lyons, applied on his behalf for
readmission to the protection process under s. 22 of the International Protection Act
2015. That relatively short application form is a crucial document for present purposes.
Ordinarily, while the introduction of a protection element gives rise to a requirement for
redaction in proceedings, given that the applicant has been named in so many judgments
to date, his counsel has helpfully stated that there is no objection to that continuing, and
indeed that is only practical because otherwise it would be very difficult to make sense of
the procedural history here.
4. On 15th February, 2018, the International Protection Office rejected the application under
s. 22. On 27th February, 2018 the applicant submitted an appeal to the International
Protection Appeals Tribunal. I dismissed a challenge to the deportation order in Seredych
v. Minister for Justice and Equality (No. 1) [2018] IEHC 187 (Unreported, High Court,
22nd March, 2018). I refused leave to appeal to the Court of Appeal in Seredych v.
Minister for Justice and Equality (No. 2) [2018] IEHC 307 (Unreported, High Court, 23rd
April, 2018).
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5. The applicant then left the State on 24th April, 2018. The Supreme Court refused
leapfrog leave to appeal in Seredych v. Minister for Justice and Equality [2018] IESCDET 157
(26th October, 2018).
6. On 11th February, 2019 the IPAT gave a written decision without an oral hearing setting
aside the recommendation of the IPO. On 20th February, 2019, the applicant signed an
application form to the Strasbourg Court claiming that he was a victim of violations of
arts. 8 and 13 of the ECHR. On 26th February, 2019 the respondent consented to the
applicant making a subsequent application for international protection. The letter stated
that the applicant should attend the IPO within ten days. Obviously he failed to do that
because he was in the Ukraine. On 1st April, 2019 the Minister refused a request to
revoke the deportation order and wrote to KOD Lyons to that effect. On 3rd April, 2019,
Ms. Lyon informed the applicant of the adverse decision and on 12th April, 2019, she left
KOD Lyons to set up her own firm of solicitors, Abbey Law. When leaving an existing
firm, in the absence of agreement, a solicitor is not allowed by the Law Society to
specifically volunteer to clients that she or he is leaving or to take any papers, so it was
not until the applicant contacted KOD Lyons that he was informed that the solicitor who
had been handling his file had moved on. He then made contact with Ms. Lyon at her
new premises on 19th April, 2019.
7. On 25th April, 2019 the Minister declined to give the applicant a visa to return to the
State and on the same date the applicant gave Ms. Lyon an authorisation to take up his
file. She has affirmed on affidavit that her practice was to forward all such authorities to
her former employer although she cannot find the specific original email in this case but
did send a reminder on 2nd May, 2019. There was then something of an exchange of
correspondence between her and her former employers regarding taking up the file and
the final relevant documents seem to have been furnished on 4th June, 2019 apart from
the applicant’s visa application, which only came through later on 28th June, 2019. The
present proceedings were filed on 7th June, 2019. A third child of the marriage was born
very recently in or about June, 2019 having been conceived when the wife went to
Ukraine last year to visit the applicant.
8. At an early stage of the proceedings, counsel for the respondent complained about the
lack of an affidavit from the applicant personally, contrary to High Court Practice Direction
HC81, but having considered submissions from both sides I held that the issue in the
present case turned on a point of law which did not appear to require personal evidence
from the applicant. I then granted leave on 15th July, 2019. On 18th July, 2019 the
Strasbourg Court held the application to that court was inadmissible as manifestly
unfounded (Seredych v. Ireland (Application No. 21718/19)). A statement of opposition
was delivered dated 3rd September, 2019.
9. On 22nd October, 2019, the first day of the hearing of the action, I gave liberty to the
applicant to file a further affidavit of Ms. Lyon explaining the delay in instituting the
proceedings. I also ordered by consent that the affidavits in the first judicial review would
be evidence in the present judicial review insofar as they are relevant, and helpfully a
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book of affidavits in the first judicial review has been prepared and made available to me.
I have received submissions from Mr. Anthony Lowry B.L. who conducted the hearing,
and Mr. Michael Lynn S.C., who addressed the court on the post-judgment mention dates,
for the applicant and from Ms. Siobhán Stack S.C. (with Mr. John P. Gallagher B.L.) for
the respondent.
Statutory framework in outline
10. The basic procedure for a reapplication for international protection is that the applicant
has to obtain the consent of the Minister before the actual reapplication can be made. A
recommendation is made by the IPO as to whether the Minister should consent to the
application or not, and an adverse recommendation can be appealed to the IPAT. If there
is a favourable decision from either body, by virtue of s. 22(13) of the 2015 Act the
Minister is required to give such consent and following such a consent the applicant then
makes an application under s. 15 of the 2015 Act. Only at that point is he or she deemed
to be an “applicant” under s. 2 of the 2015 Act.
Complaint regarding breach of O. 84
11. Ms. Stack reruns the complaint about the lack of an affidavit from the applicant personally
which had been made by Mr. Gallagher in the directions list at an earlier stage, but this
time under the heading of O. 84 of the Rules of the Superior Courts rather than Practice
Direction HC81. But O. 84 is not absolute. Normally it does require a personal averment
from the applicant but there can be exceptions. If the matter is essentially a point of law
it may not so require and this is such a case.
Withdrawn objection regarding time
12. Ms. Stack also initially objected to the proceedings as being out of time but following the
delivery of the fourth affidavit of Ms. Lyon the objection was very sensibly withdrawn. In
any event, I am satisfied that there is good and sufficient reason for an extension of time.
Objection that mandatory relief is a non-starter
13. Ms. Stack makes the point that the applicant has not expressly claimed any mandatory
relief and submitted that certiorari of the adverse decisions in and of itself does not do
anything practical for the applicant. That submission is unfounded but I will explain why
at a later stage.
Objection that the applicant got what he asked for and is not entitled to anything else
14. The argument is made that the ministerial consent furnished under s. 22(13) of the 2015
Act does not imply a right to enter or remain. Such a right, it is argued, depends on
actually making a substantive application for protection under s. 15. The contention that
the applicant therefore got what he asked for and is not entitled to the additional rights
claimed in this action is essentially the gist of the argument made by the State here. But
implicitly, the grant of permission to make a reapplication is the start of a process, and
the Minister is not entitled to frustrate that statutory process. The principle involved was
vividly summarised recently in Vince, Maugham and Cherry v. Johnson and the Lord Keen
of Elie [2019] CSOH 77 at para. 37 in the context of a suggestion that the UK Prime
Minister might act in a manner so as to undermine the objectives of a particular Act of
Parliament (the European Union (Withdrawal) (No. 2) Act 2019). The point was
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summarised as being “the public law principle that he cannot frustrate its purpose or the
purpose of its provisions”. That principle is relevant here.
15. Ms. Stack replies that the Minister is not frustrating the re-application and that the
applicant “voluntarily” left the State, a word that featured prominently throughout her
submission. But it does violence to language to call the applicant’s leaving a voluntary
act for the simple reason that he was required to leave under the express terms of the
deportation order. By not re-admitting the applicant the Minister is frustrating the
statutory purpose, which is that the applicant should be allowed to pursue his re-
application. If, hypothetically, the applicant had presented himself unlawfully in the State
despite the deportation order within the ten days following the grant of permission to re-
apply, Ms. Stack says that the State would have been obliged to re-admit him to the
protection process (I will deal later with whether the ten-day limit is fatal to this
application or not). Unfortunately, such an interpretation incentivises illegality. The legal
system must work for the person who attempts to comply with the rules and it is strange
to hear counsel for the State arguing that the applicant would have been better off legally
if he had ignored the express statutory obligation to comply with the deportation order.
It does not feel like I would be complying with the declaration to uphold the law of the
State if I gave too much mileage to that argument. An applicant should not be
disadvantaged because he or she complies with a deportation order as compared with a
person who flouts such an order.
Objection that the Minister is entitled to take a different view from the IPAT when
dealing with revocation of the deportation order
16. Reliance is placed on the judgment of O’Donnell J. in Y.Y. v. Minister for Justice and
which I had taken in that case to the effect that the Minister was not obliged to follow
precisely the same reasoning as the tribunal when considering the subsequent question of
revocation of a deportation order. That is the position where there are two quite separate
processes involved. The Refugee Appeals Tribunal decision in Y.Y. was a separate
statutory process to the subsequent deportation order, whereas here the question of
giving permission to readmit the applicant to a protection process is part of the very same
process as the actual re-application itself. Allowing the applicant back into the State to
pursue the re-application simply gives effect to the IPAT recommendation – it is not a
totally distinct process as in Y.Y.
Objection that the 2015 Act does not apply to the applicant
17. Section 15(1) of the 2015 Act provides that only those in or at the frontier of the State
can apply for protection. The argument is made that the applicant is not such a person so
cannot apply. Reliance is placed on the argument that the right to enter and remain
under s. 16 of the Act only applies to an “applicant” within s. 2(1). That is a person who
has made an application under s. 15(1). That is not this applicant.
18. Ms. Stack is correct that the explicit requirements of the right to remain under the 2015
Act do not apply. Where the obligation to admit the applicant to the State comes from is
not so much the wording of the 2015 Act but the general public law principle that the
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Minister must not frustrate the statutory process. The applicant has the benefit of a
positive IPAT recommendation and should be allowed to act on it. It is certainly true that
to be a refugee you have to be outside your country of origin: see e.g. M.A.M. v. Minister
for Justice and Equality [2019] IECA 116 (under appeal). Reliance is also placed by the
respondent on Cathryn Costello, The Human Rights of Migrants and Refugees in European
Law (Oxford, 2016) at pp. 235 to 238. But one has to ask, why is the applicant outside
the State? The answer obviously is because of the deportation order. He complied with
that order by leaving the jurisdiction. Judicial review technically is a branch of the equity
jurisdiction and would not be equitable to permit the Minister to rely on the applicant’s
current position outside the State when that position arose from an act of the Minister
himself, namely the deportation order.
Objection that if the 2015 Act does apply to the applicant then the only right is to be
admitted at the frontier, not to remain or re-enter
19. Again, yes, when literally construed, the 2015 Act does not expressly provide for the right
we are talking about here; but the applicant’s right to be readmitted to the State arises
from the basic public law principle that I have discussed above, so it is implicit rather than
explicit.
Objection that no purpose would be served by readmission because the ten-day time
limit to make an application has expired
20. The ten days to make the actual re-application set out in s. 22(14) of the 2015 Act had
obviously expired without that actual reapplication having been made. The reason that
that time limit was not complied with was that the applicant was outside the State, which
can be attributed to the deportation order made by the Minister. The Minister cannot
therefore rely on his own actions to prevent the applicant from making a re-application.
The ten-day period therefore must be taken as commencing to run from the date of the
applicant’s actual re-admission to the State.
Objection that the applicant is not eligible to make the claim he is making
21. Ms. Stack submits that the applicant’s substantive claim relates to one of subsidiary
protection under art. 15 of the qualification directive 2004/83/EC and that the applicant is
disqualified from subsidiary protection because of art. 17 of the directive and s. 12(1) of
the 2015 Act, namely the commission of serious crime. That may or may not ultimately
prove to be so but it can only be considered in the context of the actual protection claim
and is not something to be determined a priori before the re-application is even formally
launched.
Other objections in statement of opposition
22. Leaving aside the EU law points for a moment, various other objections were made in the
statement of opposition but not particularly pursued in written submissions or in oral
argument, but for completeness I have considered all of those objections and do not see
any of them as being a bar to relief in favour of the applicant.
European law objections
23. As I am finding for the applicant on domestic law issues I do not need to decide the EU
law points. Admittedly there is a possible point of EU law here, namely whether the right
to re-apply provisions of arts. 32 and 39 of the procedures directive 2005/85 require a
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member state to readmit into its territory an applicant who is granted permission to make
a re-application for protection and was present in that territory at the time of applying for
permission to reapply for international protection but has left the territory before the
determination of that application for permission because the authorities of the member
state have made a deportation order requiring such an applicant to leave.
24. Ms. Stack submitted that if I was not with her on the EU law point then the matter was
not acte clair in favour of the applicant; so it may be that if some other forum thinks I am
wrong on the national law point and has to get into the European point, the question of a
reference may loom large, but I do not need to deal with that further for present
purposes.
Order
25. The applicant has achieved the not inconsiderable forensic feat of having had adverse
outcomes in every (non-military) court in the legal system apart from Luxembourg: his
convictions in the District Court and, after a full fight, in the Circuit Court, the rejection of
his criminal appeal by the Court of Appeal, the dismissal of his first judicial review by the
High Court, the refusal of leave to appeal by both the High and Supreme Courts and the
rejection of his application to Strasbourg. Only the Luxembourg court is missing and in
that regard I might have had to suppress an inner imp urging a reference so that this
applicant could complete the grand slam. But merely because someone has had seven
adverse court outings does not mean that the eighth one automatically has to be adverse
also. If this case was still an immigration case I would have had no problem in holding
that it was well within the Minister’s discretion to consider that the State’s interest in
visiting upon the applicant the consequences of his offence against the injured party here
outweigh the interests and rights, whether as to family or private life or otherwise, of the
applicant, his wife and the seven children potentially affected (being the child of his first
marriage, his three step-children and the three children of his second marriage). But this
case is no longer an immigration case, it is a protection case and that changes
everything. Admittedly it might superficially seem that I am reversing the result of my
decision in Seredych v. Minister for Justice and Equality (No. 1) [2018] IEHC 187
[2018] 3 JIC 2206 (Unreported, High Court, 22nd March, 2018); but what comes to mind in that
context is the phrase often attributed to John Maynard Keynes, “When the facts change, I
change my mind. What do you do, Sir?” That does not seem to be a verbatim quotation,
and is possibly slightly misleading in the sense that one should change one’s mind on
occasion even if the facts do not change: see John Kay, “Keynes was half right about the
facts”, ft.com, 4th August, 2015. But here there is a significant factual change - the
grant of permission to make a re-application for protection. That changes the legal
conclusion. Persistence does not always pay off but on occasion it can, so the outcome
here can to a large extent be put down to the persistence of Ms. Lyon and counsel.
Postscript regarding form of the Order
26. This matter was heard on 22nd and 29th October, 2019 on which latter date judgment
was given ex tempore broadly along the foregoing lines (leaving aside the question of the
form of relief). Following the judgment, the matter was listed as to the form of the order
on 4th, 18th and 25th November, 2019 and 2nd December, 2019. It is next listed on
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16th December, 2019 to deal with leave to appeal. Determining the precise form of the
order in this case has been slightly more complicated than usual. Predictably one can put
the bulk of that down to judicial fallibility, but hopefully the optimum result can now be
arrived at.
27. When originally giving judgment I indicated my intention to grant certiorari of the
revocation refusal and the visa refusal and said that I would hear from counsel regarding
a declaration that seemed appropriate in principle. When preparing the draft unapproved
written version I added that on reflection it might be sufficient to give liberty to apply for
a declaration.
28. On a subsequent mention date, Ms. Stack suggested a draft wording for a declaration
with a written version to follow, accepted that costs followed the event, and then sought
both a stay on the declaration and costs as well as leave to appeal in relation to the
revocation of the deportation order. However, prior to perfection of the order and while
awaiting receipt of the written version of the State’s wording, I have reflected on the
matter and now think that a proliferation of reliefs in fact overcomplicates this whole
matter procedurally to a totally unnecessary extent.
29. At the hearing, Ms Stack originally submitted that the Minister’s position was that that
certiorari didn’t do anything for the applicant, and insofar as the intention of the court
was to impose positive obligations on the Minister there would need to be some further
order such as detailed declaratory relief. This was the premise on which the discussion of
further reliefs took place and on which I proceeded to consider the question of a possible
declaration. I realise that at this point, the reader will be wondering how I could have
failed to see immediately that this was obviously a false premise having regard to the
provisions of O. 84 r. 27(4) of the Rules of the Superior Courts. That neither Ms. Stack,
whose fallacious submission would thereby have disintegrated, and on whom the primary
(and, in this case, undischarged) onus to keep the court right therefore lay, nor counsel
for the respondent, mentioned this provision, may conceivably be relevant.
30. The core issue is whether the Department was correct in declining to revoke the
deportation order. The answer to that question is “No”. Section 5 of the Illegal
Immigrants (Trafficking) Act 2000 applies to that decision and that is really what this case
is about. To grant any other reliefs at this stage might procedurally create the impression
that the case was outside s. 5, when at its core it is very much within it. That is obvious
if one thinks about what would have happened if the applicant lost. Clearly he would
have had to get leave to appeal under s. 5 had he intended to go further (as he was
required to seek when he lost his previous judicial review). Indeed Ms. Stack’s
suspiciously enthusiastic championing of the notion that I should grant a smörgåsbord of
reliefs in favour of the applicant can only credibly be explained by her unarticulated desire
to have a free run at the Court of Appeal in the hypothetical event of not getting leave to
appeal under s. 5. While she was initially reluctant to concede that, or indeed to concede
anything, I understood her ultimately to have grudgingly offered some acknowledgment
that appealability was a factor in the State’s tactics. Even in the unlikely event that if I
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am wrong to have understood her thus, that makes no difference because it is obvious at
every level that this was what was driving much of the respondent’s strategy. It would be
a totally distorted and unequal process if a case requires leave to appeal only if the
applicant loses, but where the respondent can appeal at will simply by the device of
tacking on some kind of purely consequential declaration or even equally consequential
certiorari of a non-s. 5 issue, and even when such reliefs are ingenuously sought by the
applicant (whose counsel Mr. Lynn didn’t – indeed still doesn’t - seem to fully understand
that Ms. Stack’s oleaginous invitation into the spider’s parlour was not altogether
philanthropic). The unfairness of such a free run at an appeal would be compounded in a
case such as this where the State successfully opposed the applicant’s previous
endeavours to appeal in both the High and Supreme Courts and now when the shoe is on
the other foot is seeking by stealth to create a situation where such constraints are
largely, albeit perhaps not entirely, dispensed with in relation to its proposed appeal.
31. That brings us to whether it is necessary to grant certiorari of the visa refusal. That
particular refusal was in reality ephemeral and has to be seen in the context of the
unrevoked deportation order at that time. If the order is in fact revoked, which is the
core issue, and if a visa is in fact required to give effect to the judgment, which is not
entirely obvious a priori, the applicant can apply for a fresh visa (which the Minister would
then be obliged to grant forthwith), although presumably the State won’t let it get to that
point and if one is necessary, will grant a visa of its own motion. Subject to a valid
appeal, not taking the initiative would be a disregard of the rule of law given the basis on
which I am quashing the refusal to revoke the deportation order. Presumably such
disregard won’t arise.
32. Accordingly, by far the simplest, as well as the fairest, order is simply to quash the refusal
to revoke the order and to direct the Minister under O. 84 r. 27(4) to reconsider and re-
decide the matter forthwith in accordance with the judgment of the court. For the
avoidance of doubt, this is a case where the legal basis for the obligation to revoke is
clear so there is no discretion – the power to revoke can only be exercised in one way,
that is in favour of the applicant. As this follows from the permission to re-apply for
protection, there is no need for a further process of submissions or ministerial
consideration. Subject to a temporary stay to allow an appeal to be considered, it needs
to be done forthwith.
33. I will give the applicant liberty to re-enter if he wishes to apply for any other reliefs in due
course, including declarations, mandatory relief, or certiorari of the visa refusal, should
those be necessary or appropriate, although presumably that won’t be necessary given
that everyone should be on board with the principle of the rule of law.
34. The net result is that the appropriate order at this stage (that is, before any application
by the State for leave to appeal under s. 5 of the 2000 Act is heard) is as follows
(superseding the wording that was previously envisaged but was not embodied in a
perfected order):
(i). An order extending time (relief 5);
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(ii). Certiorari of the decision of 4th April, 2019 refusing to revoke the deportation order
(relief 1) and an order remitting that decision back to the Minister with a direction
under O. 84 r. 27(4) to reconsider the matter in accordance with this judgment;
(iii). Liberty to the applicant to re-enter the matter should it become necessary to apply
for any such other relief;
(iv). An order for the applicant’s costs including reserved costs, certifying for two
counsel for the leave application; and
(v). A stay on the order for costs and on the remittal under O. 84 r. 27(4) for 28 days
and in the event that leave to appeal to the Court of Appeal is granted and such
appeal is lodged within 28 days, a stay until the determination of that appeal, or as
the case may be, in the event that leave to appeal to the Court of Appeal is not
granted, and an application for leave to appeal to the Supreme Court is lodged with
that court within 28 days, a stay until the determination of that application for
leave to appeal, or if such leave to appeal is granted by the Supreme Court, a stay
until the determination of that appeal.
Result: Reliefs granted.