Wednesday, May 23, 2012

Judicial Review Granted of Decision to Deport Individual who remained in the State under a Fake Identity on grounds of Preserving his Right to Family Life

Case Study: Sivsivadze & Ors v Minister for Justice and Equality & Ors [2012] IEHC 137

The applicants in these judicial review proceedings sought to challenge a decision by the Minster to refuse to revoke a deportation order made in respect of the fourth named applicant, Davit Arabuli.

The principal ground for this application is that s 3 of the Immigration Act 1999 is unconstitutional as it imposes a lifelong ban on a person subject to a deportation order, which amounts to disproportionate interference with the applicant's right to family life under article 41 of the Constitution. The constitutionality of s 3 has never been challenged before. The applicants also sought a declaration of incompatibility pursuant to s 5(2) of the European Convention of Human Rights in that allowing for a deportation order of indefinite duration violates the applicants right to family life under article 8 of the Convention.

The fourth named applicant, a Georgian national, entered the state in 2001. Mr Arabuli who used the alias Datia Toidze, was refused asylum and a deportation order was issued in respect of him in December 2001. He failed to report to the GNIB in respect of the order and was classified as an evader. Mr Arabuli managed to remain present in the state until November 2011. In the meantime Mr Arabuli began a romantic relationship with first named applicant in 2003. Their first child was born to them in April 2005 and their second child was born in August 2009. They married in July 2009. Their children are not classified as Irish citizens.

Mr Arabuli made a number of applications to revoke his deportation order during this time but the deportation order was affirmed. In October 2011 the applicant was arrested and detained in Cloverhill prison. During cross-examination Mr Arabuli admitted that the name Toidze that he had been consistently using throughout his time within the state was simply an alias. The applicant was deported in November 2011.

Under s 3 if a deportation order is made, it must be for an indefinite duration save that the Minister can revoke the order pursuant to s 3(11) at any time. The real question is whether the existence of a sanction that is potentially life long in duration is essential in circumstances where the applicants have real and substantial ties with the state

The European Court of Human Rights regards deportation orders of unlimited duration as raising serious Article 8 issues. The grant of humanitarian leave to Ms Sivsivadze amounts a tacit acceptance that it would be unfair to expect her to go back to Georgia. The Minister’s decision acknowledged that implementing the deportation order would not be in the best interests of the two children, but failed to expressly weigh it in the balance. The High Court noted previous decisions in which it was stated that such an order of unlimited duration was an overly rigorous measure.

Overall the High Court found that the applicant made out substantial grounds that the application of a deportation order of potentially indefinite duration would infringe Article 8 ECHR, especially having regard to the circumstances of this case.

On the constitutional question, the court applied the three-pronged test of proportionality propounded by Costello J in Heaney v Ireland. Firstly, legislation that provides for the deportation of persons who have abused immigration laws through deception is connected to important state interests. Secondly, while the deportation order did impair the Article 41 rights of the other family members, it is recognised that it is not possible to have effective control of immigration without the sanction of deportation. The third limb requires the court to consider whether the effect on rights is proportionate to the objective. The question is whether the states interests in effective immigration law requires that a deportation order have indefinite effect.

The High Court found that the applicants raised substantial grounds in respect of both the Constitutional and ECHR grounds in the manner indicated and granted the applicants leave.   

Brophy Solicitors



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