Case Study: Correct service of Notice of Intention to Deport

MM (Georgia) v Minister for Justice, Equality and Law Reform [2011] IEHC 529, delivered on the 19^th September 2011

The applicant in these High Court proceedings sought to challenge the validity of a deportation order made against him on the basis that there was no evidence that the applicant was ever properly served with any proposal to deport him pursuant to s 3(6) of the Immigration Act 1999.

The applicant, a Georgian national, arrived in the state at the end of 1999. The applicant’s application for asylum was refused in 2003 and he was served with notice to deport him. The applicant challenged this order resulting in a settlement under which the applicant was given permission to remain in the state until April 2010. In the meantime the applicant was convicted of theft in September 2009 and sentenced to nine months imprisonment. The central issue of the case then arose as to whether the applicant had been served with a fresh proposal to deport him on the 12^th of May 2010 whilst he was serving a sentence in Cloverhill prison. 

Section 3(6) of the 1999 Act provides that notice should be served on an individual by being delivered to them or by sending it by post or other recorded delivery service. The Minister sent the deportation letter to Cloverhill prison. The applicant maintained that he never personally received the letter. The prison authorities on the other hand gave evidence that there was a delivery docket for the letter at the prison and it was on the applicants file. The Minster was unable to show that the letter was actually delivered to the applicant in person and so failed to comply with the statutory prerequisites to validate the deportation order.

The High Court found that the Minister also failed to comply with Section 3(6)(b) under which it is necessary to show that the deportation letter was sent to the most recent address furnished by the applicant. It was established in this case that the letter was not sent to the applicant’s most recent address.

The Minster could therefore not establish that that the notice of intention to deport was ever served on the applicant in the manner required by s 3(6)(a) or s 3(6)(b). Proof of service according to the terms of these provisions is an integral feature of the entire deportation system. Given that a deportation order is of fundamental and far-reaching importance to the applicant, it is vital that there be compliance with the procedural requirements prescribed by statute. For these reasons failing to demonstrate that the applicant had been served with notice of an intention to deport in accordance with s 3(6) is so fundamental that this court could not permit any subsequent deportation order to stand. 

Brophy Solicitors

3.5.12