CASE ANALYSIS: DOS SANTOS – DEPORTATION AND CONSTITUTIONALITY OF SECTION 3 OF THE IMMIGRATION ACT 1999

Mr Justice Colm Mac Eochaidh recently granted an interlocutory injunction restraining the deportation of a Brazilian family in the case of Odenis Rodrigues Dos Santos & Ors v Minister for Justice and Equality. He also granted leave to seek judicial review. The judgment was handed down on the 30th of May and gave consideration to international and domestic law. 

The case concerned a family who have been living in Roscommon Town. Mr Dos Santos arrived in Ireland in 2002 and his wife and children joined him in 2006 and 2007. Since then the children have attended school in Ireland and settled into Irish society. In March 2012, the Minister for Justice issued deportation orders in respect of the family.

The applicants submitted that the Minister didn’t find the correct balance in issuing the order because he focussed too heavily on their immigrant status instead of looking at the extent to which they had assimilated into Irish society and the amount of time that they had spent in the country. They claimed that the Minister’s actions showed disregard for the UN Convention on the Rights of the Child. The argument was also made that s3 of the Immigration Act 1999 is unconstitutional because of the fact that a deportation order is effectively a lifelong ban from entering Europe. 

Representatives of the Minister for Justice responded by arguing that the applicants were non-nationals who were illegally in the state and therefore should be deported. They also submitted that there was no allegation of threat of serious harm to the applicants if they were returned to Brazil and therefore there was no reason for the court to restrain the deportation. 

In coming to the conclusion that the applicants’ deportation should not take place before a full hearing of matters, Mr Justice Mac Eochaidh looked at the manner in which the Minister and his officials considered the circumstances of the child applicants. He said that the test to be applied was whether the order would interfere with the applicant’s right to private and family life, and if it did, that the interference had to be proportionate to the requirements of a democratic society. This test was created in the English case of R (Razgar) v Home Secretary in 2004. Discussing the application of this test, the judge referred to other decisions of the court which looked at the impact of deportation orders on children. He said that there was strong precedent from the cases of Oguekwe v Minister for Justice and E & Anor v Minister for Justice that the Minister had to take consideration of the best interests of the child in coming to the conclusion to make a deportation order. He noted that the Minister had to consider all matters put before him by the parties but was not obliged to make enquiries outside of the documents submitted to him. 

The judge discussed the impact of the UN Convention on the Rights of the Child, which has been ratified by Ireland but not implemented into Irish law. He came to the tentative conclusion that the Convention was applicable in situations where there was no conflicting principle of domestic law. He held that because there was no conflicting principle of law in the Immigration Act 1999, that the Convention was applicable in immigration cases. Article 3 of the Convention provides that decisions affecting children shall be taken by reference to the best interests of the child. In view of the number of children and the age range and the varying impacts deportation might have on them Mr Justice Mac Eochaidh came to the conclusion that the deportation should be restrained. 

The judge did not draw any conclusions about the constitutionality of s3 of the Immigration Act 1999.

Brophy Solicitors

BROPHY SOLICITORS IS PROUD TO SUPPORT THE IRISH REFUGEE COUNCIL’S FUNDRAISING EVENT TO MARK WORLD REFUGEE DAY

On Saturday 22nd June the Irish Refugee Council is hosting a fundraising evening – a medley of entertainment featuring music, prose, art and poetry. The event, which will be held at the Unitarian Church on Stephen’s Green, will come at the end of a week of activities across Ireland and beyond marking World Refugee Day which is on June 20th. 

A variety of artists from the Nigerian, Iranian and Sierra Leonean communities among others, and from Ireland, along with a number of young people performing their own composition with headliner Ben Okafor will take the stage. 

Tickets are €20 with a limited number available to students and the low-waged at a reduced price of €10. Funds raised will go towards supporting the work of the Irish Refugee Council and in particular, our work with young people seeking asylum in Ireland.

The event will commence at 7.30pm and all are welcome.

Sarah Henry

Brophy Solicitors

Information Notice for Clients about Subsidiary Protection Applications

On the 23rd of January 2013 Mr Justice Hogan delivered judgment in the case of MM v Minister for Justice Equality and Law Reform in the High Court. This judgment has had a significant impact on applications for subsidiary protection in Ireland. 

Applicants who are unsuccessful in their asylum claim can make a subsequent application for subsidiary protection to the Minister for Justice and Equality. In MM, it was found that the Minister relied entirely on the findings made by the Refugee Appeals Tribunal at the asylum application stage in coming to the decision that the applicant would be refused subsidiary protection. Mr Justice Hogan held that the Minister failed to afford the applicant a fair hearing because he made no separate and independent adjudication. He noted that his decision would have far-reaching consequences for the current subsidiary protection programme.

Brophy Solicitors currently have a number of clients who are applying for subsidiary protection. Some clients have been waiting in direct provision centres for up to five years awaiting a decision on their status and they are growing increasingly anxious about the result of their application. The decision in MM has had the impact of delaying decisions for applicants even further as the Irish Naturalisation and Immigration Service (INIS) have to devise a new system for processing applications in line with the judgment. We are also aware that the High Court has granted leave to issue judicial review proceedings in cases with already lengthy delays. 

In correspondence with Brophy Solicitors, the Department has requested that our clients ‘bear with [them]’ until ‘[they have] completed the work necessary toward putting the new procedures in place.’ They gave an assurance that all of our clients who have made applications remain on file and will be dealt with as speedily as possible once the new system is in place. This is worrying for some of our clients who experience delays of up to 5 years. 

The Minister spoke about the matter in response to a parliamentary question on the 11th of June 2013. He said that the MM case was under appeal to the Supreme Court but that INIS was working on devising a system for applications in the interim. He also advised that he is hoping to re-publish the Immigration, Residence and Protection Bill under which ‘it is envisaged that applications for asylum, subsidiary protection and ‘leave to remain’ will be dealt with as a single procedure.’ He advised that these legislative provisions are being given priority attention and that once they are in place, applications will be dealt with in a ‘timely manner.’ 

Many of our clients have been give the option to withdraw their Subsidiary Protection so that INIS can commence a speedy determination of their pending Leave to Remain applications. 

Depending on the Applicant’s circumstances, this might be a good option and many clients who are waiting for up to five years or more want to avail of the quickest route in obtaining a decision. Nonetheless a positive outcome in every case is not indicated by INIS and applicants should note that a quick decision does not necessarily mean a positive decision. The difference between the two applications and the impact of a decision to withdraw a Subsidiary Protection case must be carefully explained to each client who must make an informed decision. 

Katie O'Leary and Sarah Henry

Brophy Solicitors

CASE ANALYSIS : Y.A-E v Minister for Justice (7th May 2013, HC, Mr Justice Mac Eochaidh)

DECISION MAKING PROCESS RAT

In this decision in the High Court, Mr. Justice Mac Eochaidh held that s16(16) of the Refugee Act, which sets out the matters which the Refugee Appeals Tribunal (RAT) must consider when making a decision on an appeal, is not an exhaustive list. It was also held that, where a RAT decision is remitted, the applicant may have to be notified that the RAT may remove documents from the file.

The case involved a Sudanese national from the Darfur region who first applied for asylum in Ireland in 2004. At the centre of this case was the failure of the RAT to take into account a language analysis report which supported the applicants claim for asylum. In light of the failure to take this information into account the applicant’s case was remitted to the RAT for a new decision, however the RAT removed the language analysis report from the applicant’s file. The legality of the removal of this information from the applicant’s file was challenged.

The Minister and the RAT argued that the applicant’s challenge was unfounded on two grounds. First, it was argued that the RAT was entitled to remove documents from an applicant’s file following a remittal in order to “cleanse” the file of any possible bias or prejudiced information which may have been included in the file by the previous Tribunal Member. Secondly it was submitted that s16(16) of the Refugee Act 1996, which sets out the matters to which the RAT must consider in making a decision, does not include reports obtained by the RAT under s16(6) of the same act and therefore the RAT had no obligation to consider the language analysis report.

Mac Eochaidh J upheld the applicant’s complaint and remitted the decision to be considered by the RAT again. He ordered the inclusion of the language analysis report in the applicant’s file. The decision was based on the following grounds:

1. The Court held that the RAT is entitled, in principle, to remove documents from an applicant’s file when the decision is being remitted. This applies regardless of whether the case is remitted following the quashing of a RAT decision by the court or on a more informal basis (for example upon agreement of the parties). However in this case it was held that the removal of the document in question, the language analysis report, led to a significant injustice. The judge held that the applicant was entitled to presume that the report would be considered in the new appeal in light of the fact that the applicant’s case was remitted because of the failure of the RAT to consider the report in the first place. Furthermore it was noted that the applicant was not aware of the ‘cleansing’ policy of the RAT. He therefore had no opportunity to apply to the court to ensure that the document was considered in the new appeal which led to the RAT making a decision without considering a crucial piece of evidence.
   
2. The court held that the list of matters that the RAT must consider in s16(16) of the Refugee Law Act 1996 was not exhaustive. Therefore the RAT is not precluded from considering a document obtained by the exercise of its s16(6) powers and, in certain circumstances, may be even be obliged to consider matters not listed in s16(16). The Court noted that the RAT can only use s16(6) to request extra information from the Refugee Commissioner when it considers the information necessary for it to enquire whether a person is a refugee. The court reasoned that to interpret s16(16) in such a way that the RAT could not consider information which had been deemed necessary to assess an applicant’s refugee status would ‘make a nonsense’ of s16(6). 

It is also worth noting the strong criticism of Mac Eochaidh J at the end of his judgment where he noted that the excessive delay of 10 years in this case could be considered a significant injustice, regardless of the fact that the delay was not caused by a deliberate act of any person or body.

Brophy Solicitors

IT’S OUR RIGHT TO MARRY! IRISH REGISTRARS CONTINUE TO WRONGLY REFUSE COUPLES THEIR RIGHT TO MARRY

In a short space of weeks, we received a number of complaints from aggrieved clients who, having served their notification of intention to marry, were refused permission to marry by local registrars. The cases concern EU nationals and their non-EEA partners who contacted us in a state of distress and anxiety having been advised that an objection to their marriage was raised and that their marriage would not be going ahead as planned. 

In 2011 we issued proceedings regarding a similar situation involving an EU national and her husband who suffered sheer humiliation and deep distress when an objection was lodged in respect of their marriage on the morning of their wedding!! The bride and her husband-to-be were just about ready to commence celebrating their marriage before family and fiends, many of whom had flown to Ireland from abroad for the occasion. But the actual marriage took place months later following a court settlement resulting in the objection being lifted. Their day was ruined and their financial loss was significant. 

Two years later we see the problem arising again although we managed to tackle this head on without resorting to the High Court. Our clients were advised that under the provisions of section 51(2) of the Civil Registration Act, 2004 that a registered solemniser shall not solemnise a marriage unless he/she is satisfied that the parties to the marriage understand the nature of the marriage ceremony and the declaration that they accept each other as husband and wife. In this case the registered solemniser was not satisfied that our clients understand the nature of their marriage ceremony and the declarations that they accept each other as husband and wife and you felt that an ‘offence’ may have been committed under section 51(2). An Garda Siochana were notified and asked to investigate a possible offence under this section. Which offence was the registrar referring to? This section does not refer to any offence that would have been applicable to our clients. The legislation as it stands does not cover any offence indicated by the Registrar. 

The situation was previously fleshed out in court by Justice Hogan in Izmailovic & Anor -v- Commissioner of an Garda Siochana & Ors [2011] IEHC 32 when the marriage of a couple was intercepted by the State and the groom arrested on the grounds that the Gardai believed his marriage was one of convenience. Justice Hogan concluded as follows: ‘ I quite appreciate that the decision in this case may present the authorities with very considerable difficulties in this problematic area. But, as I indicated at the hearing, if the law in this area is considered to be unsatisfactory, then it is, of course, in principle open to the Oireachtas and, if needs be, the Union legislature to address these questions. As this decision in its own way illustrates, the problems encountered here are difficult ones and present complex questions of public policy in relation to marriage and immigration. These, however, are ultimately policy questions which only the Oireachtas and, again if needs be, the Union legislature can resolve.’ 

Following a detailed complaint sent to the Registrar on behalf of our most recent clients in this matter, the objection was quickly lifted and they are free to marry. Although delighted with the outcome, the stress and anxiety suffered by our clients was considerable and is something they now want to put behind them. 

Sarah Henry

Brophy Solicitors