Appeal Granted against Deportation Order on Grounds of Failure to Properly Consider the Appellant’s Circumstances within the State

Deron Peart v Secretary of the State for the Home Department [2012] EWCA Civ 568

This case concerned an appeal against a decision to uphold a deportation order made against the applicant in December 2007. 

The appellant, a Jamaican national, came to the UK in November 1996 when he was eleven years of age on a visitor’s visa and then continued to reside in the UK illegally. His mother resided in the UK since 1994. The appellant entered and remained in education up until 2006 when he was unable to meet the costs of University. In April 2007, the appellant was sentenced to 30 months imprisonment following a plea of guilty to possession of a Class A drug with intent to supply. The appellant was subsequently subject to a deportation order. In the meantime, the appellant entered into a relationship with a UK citizen, Alexis, and their son Ashton, who is also a UK citizen, was born in 2009.

The Secretary of State refused his appeal against the deportation order in July 2009. The first-tier tribunal then allowed his appeal on the grounds that his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the ECHR. This decision was appealed against and a fresh hearing came before the Upper Tribunal, which then dismissed the appeal in 2011.

The grounds of appeal before the Court of Appeal are that the tribunal failed to consider Ashton’s best interests, failed to consider the appellants family and private life, failed to take into account important evidence and failed to consider whether the nature of the appellant’s offending was so serious as to justify his removal. Each ground was considered in turn-

(i) Failure to consider Ashton’s Best Interests-

The Judge in the Upper Tribunal (DIJ Woodcraft) was not convinced that the appellant had a close relationship with Ashton, but in order to do justice to Ashton’s position he should have considered how their relationship might develop in future if the appellant were allowed to remain. The Judge failed to consider the effect that the appellant’s removal would have on Ashton’s welfare and therefore did not give sufficient consideration as to what was in Ashton’s best interests or give his welfare the degree of importance it ought to have received.

(ii) Failure to give proper consideration to family and private life.

Although the judge examined the nature and extent of the appellant’s relationship with the members of his family, he did not draw the strands together in deciding whether his overall removal was proportionate. He also failed to make a significant assessment of his private life despite the fact that he had come to the UK when he was 11 years old and had been living in the country for 14 years. All he said was that the appellant had formed a private life of sorts during his time in the country, but that his failure to regularise his immigration status and his repeat offending outweighed his claim that his private life should be spared from interference.

(iii) Failure to Consider Relevant Evidence

The Judge rejected the appellant’s assertion that he had encountered positive people during his time in custody despite evidence from a prison officer and chaplain that he had made constructive use of his time.

A similar approach was taken to his history of offending. The appellant did have previous convictions for robbery and shoplifting but received a non-custodial sentence in each case. A sentence of 30 months imprisonment following a guilty plea was also at the lower end of the sentences for supplying class A drugs.

As to the prospects of re-offending, his probation report stated that the appellant showed clear signs of having made positive changes and assessed his likelihood of committing further offences as low. The Judge drew on a pre-sentence report but did not refer to the more recent progress report, which could be expected to provide the most reliable evidence of the appellant’s current attitude. The Judge failed to have regard to these important pieces of evidence, or if he did, he failed to properly assess their significance.

(iv) The Maslov principles

In Maslov v Austria the ECHR considered the approach taken by national authorities when considering the deportation of a foreign national on the grounds that his presence constitutes a danger to the community. The court listed a number of factors to be taken into account in assessing whether a deportation is proportionate. In the case of a settled migrant who has spent the major part of his childhood in this country only very serious reasons would justify removal, even if he has been unlawfully present. The Judge did consider some of the factors in Maslov as potentially relevant, but in deciding whether to remove the appellant he failed to have regard to important factors such as the age at which he arrived in the country, the length of his stay and the strength of his social, cultural and family ties within the country.

The Court of Appeal held that the decision of the Upper Tribunal was flawed in the respects identified to such an extent that it could not stand. The appeal was allowed and the matter remitted to the Upper Tribunal with a direction that there be a fresh hearing.  

The full text of the case can be accessed here

Brophy Solicitors

09.05.12

Judgment in the SZ Case

On 31^st January 2012 Mr Justice Gerard Hogan delivered judgment in the case of SZ v (Pakistan) v Minister for Justice and Law Reform, Attorney General and Ireland.

The case concerned a Pakistani national and Shia Muslim who had been involved with a voluntary Shia Organisation in Lahore, which held a commemorative service annually for a deceased imam. In 2001 however a volunteer was killed and so the applicant’s brother and a friend sought to avenge the death of the organiser and subsequently they killed a member of Sipah e Sabah, a radical Sunni Organisation banned by Pakistani authorities. The prohibited organisation sought to have the Shia treated as Non-Muslims. On the evening of the attack the applicant was shot in the leg by activists and a month later police arrested him and he claims he was ill treated whilst in prison.

Shortly afterwards the applicant was released from prison and he and his family fled to Karachi. In 2005 he briefly returned to Lahore following assurances that he would be safe, yet after receiving threats in relation to the annual commemorative service once again he fled to Kuwait before he ultimately travelled to Ireland.

The applicant claimed that he feared lack of police protection in Pakistan, yet his asylum claim was rejected in 2008 on the basis that he was able to move elsewhere in Pakistan and the decision was never challenged. Furthermore the Minister also rejected the applicant’s subsequent claim to subsidiary protection in stating that he didn’t believe the applicant had demonstrated a sufficiently serious risk of harm.

The applicant sought to challenge the decision of the minister in relation to a number of significant points.

Judgment

Firstly the applicant challenged before Mr. Justice Gerard Hogan the subsidiary protection and deportation orders decision made by Minster for Justice and Law Reform. The minister failed to grant such protection acknowledging the fact that there was a functioning police system in Pakistan and furthered pointed out that the Shipah e Sabah was banned in the country by authorities. On these grounds Mr. Justice Hogan refused to grant leave to challenge either the subsidiary protection or the deportation order.

In addition the applicant held that he had been denied an effective remedy “to appeal or to challenge otherwise the decision to refuse him a grant of subsidiary protection.” Mr. Justice Hogan looked to his earlier judgment in Efe v Minister for Justice, Equality and Reform, where he held that judicial review was a sufficient and effective remedy to vindicate the applicant’s rights under the Irish Constriction or any international obligations on the State.

Mr. Justice Hogan also reviewed the applicant’s challenge as to the principle of equivalence at EU law which he purports was violated due to the fact that he had no right of appeal in relation to the subsidiary protection decision. Mr. Justice Hogan referred to Cooke J’s decision in BJSA in which he pointed out the Procedures Directive which the applicant referred to did not require an appellate structure in relation to subsidiary protection applications, but rather only in respect of asylum applications.

Finally the applicant challenged s.3(1) of the 1999 Act which permits the Minister to make a deportation order consequently leading to “lifelong effects” and thus the applicant seeks a declaration of incompatibility with s.5(2) ECHR Act 2003. Although he discussed a great deal of ECHR jurisprudence on the matter Mr. Justice Hogan ultimately held that he would adjourn the application for leave pending the decision currently before him in the case of S v Minister for Justice, Equality and Reform.       

Brophy Solicitors
03.02.12

REVIEW OF DEPORTATION PROCEDURE NEEDED

BROPHY SOLICITORS strongly urges the Minister to review the conduct and manner in which deportations are carried out in Ireland. The decision to detain a young mother for deportation hours after she suffered a miscarriage is appalling to say the least. The incident was reported by Carl O’Brien in the Irish Times last Wednesday.  

This situation highlights the often inhumane and unjust way in which deportations of men, women and children are handled by the State.  All deportees should be treated with decency and with respect.  The trauma that this young woman suffered is unimaginable. 

Unfortunately we have come across upsetting cases concerning the removal of individuals from the State.  One particular case that we are still actively pursuing concerns a family, the children and father of which were subjects of a deportation order earlier this year.  The case has been resolved and the family has been granted the right to reside in the State.  Without going into the particulars of their case, we were concerned at the manner in which the children, who are also siblings of an Irish child and children of a lawfully resident parent, were treated following their removal from the family home.  

Their father commented: ‘Words are not enough to give a vivid account of how the family felt when the government came to deport three of my children very early in the morning of the 15th of December 2010.  Our happiness turned into sorrow, pain and anguish. The children and my wife were devastated. They were not allowed to brush their teeth or take their bath. We hurriedly packed our things and followed seven GNIB officers onto the bus outside. My little daughter cried all through the day and was crying for her siblings who were taken away from her with her father who has been a necessary support to her. The treatment by the State and the then Minister of Justice made us believe there was no human rights in Ireland. The children will live with the trauma of that ugly chapter for the rest of their lives.   The family was totally devastated and remain traumatised to date.’

In the end the deportation did not go ahead due to the speedy actions of the family’s solicitor at that time.  Thankfully all three children have now been granted permission to reside in the State after submissions were made to the Minister in respect of their lawfully resident mother and father and Irish sibling who are all residing in the State.   All three children have suffered difficulties in school and attend counselling as a result of how they were treated.

Brophy Solicitors

25.08.11

ZAMBRANO UPDATE

 APPLICANTS FROM OUTSIDE THE STATE

We have made a number of applications for fathers of Irish citizen children residing outside the State to join their Irish citizen children in Ireland.  The procedure necessarily involves an application to the appropriate Irish Embassy for a long-stay visa to enter the State.  The delays on such applications have already been considerable and yesterday we received  notification from an Irish Embassy confirming that because we had raised ‘Zambrano type submissions,’ in our application for a long-stay visa for the father of an Irish child, the matter would be sent for ‘further investigation’ to the offices of the Department of Justice and Equality in Dublin.   The note concluded that as there have been large numbers of applications submitted in light of the Zambrano judgement it may be some time before there is a decision on these cases.

It therefore appears that Visa Offices outside the State are taking roughly two to three months to review applications before sending the same application for further investigation to Dublin.  We have been told by the Visa Office in INIS that they will take a further 2 months to conclude their investigations, but in reality are taking longer again. Surely this delay is unjustified!

We might remind the Minister about his Statement he released on the 27^th April 2011.  We include the link<http://www.inis.gov.ie/en/INIS/Pages/PB11000004> to this Statement but you will find that it has expired as the statement has been removed from the INIS website.  Luckily we saved a copy of the Statement on our files.   Parents of Irish citizen children ‘outside the State’ were listed as one of the definitive eligible categories of applicants designated by the Minister following the Zambrano decision.  The Minister was very clear in his note below that applicants outside the State should apply to a local Embassy/Consulate and provide documentation showing a ‘clear link to the Zambrano judgement.’  It appears that problems have arisen within the Department concerning this category of applicants and further information has not been provided to date.

It is interesting that Department subsequently (some time around the 12^th July 2011) released revised guidelines in respect of eligibility for “Zambrano Applications”. See the following question and answer currently posted on the INIS website (http://www.inis.gov.ie/en/INIS/Pages/WP11000038);

Question 3

“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

This statement appears to be in direct contradiction to the Minster’s earlier statements in April 2011. We regard the position to be somewhat different to the Minister’s current very restrictive interpretation of the Zambrano judgement. We submit that the rights upon which a parent of an Irish citizen can rely arises from the Treaty of the Functioning of the European Union, including in particular Article 18, Article 20 and Article 21. We would highlight that while the ECJ cases such as Zambrano and Zhu and Chen are certainly very relevant to the Applicant’s situation, the judgements are not in themselves the primary source of law upon which the Applicant relies - which is the Treaty of the Functioning of the European Union.  We submit therefore that the Minister’s apparent exclusion of the parents of Irish citizen’s not resident in the State is not in accordance with EU Law.

We continue to submit applications for visa/residency for parents outside the State who wish to join or re-join their Irish citizen children residing in the State.  It is unfortunate that many of these applicants were deported shortly before the Zambrano decision came through.  They have now spent several months apart from their families with the prospect of now having to wait for a further considerable period until their applications have been decided.  We call upon the Minister to immediately review his position in light of his earlier comments.

Brophy Solicitors

24.08.11

Zambrano Update

POSITIVE RESULT IN ZAMBRANO TYPE CASES

We were delighted to receive positive news from the Department of Justice, Equality and Defence in the last week in respect of some of the recent Zambrano applications we have submitted. The approval letters have indicated that the Minister is granting permission to remain of a three year duration.

However, in one such case,  our client was granted permission to remain in the State and work for five years.   This client was the subject of a deportation order affecting her removal to South Africa along with her nine year old daughter who is also a South African national.  Our client was notified that a deportation order had issued against both she and her non-Irish child in August 2010.  When she initially joined her husband in the State she was granted permission to remain for a short period and was advised by her local immigration officer to apply to the Minister for Justice to extend such permission to reside with her husband and children in the State.  She received no response to her residency application and later instructed a solicitor to apply for leave to remain.  This application was ultimately refused.  She had however, not been served with the signed order that the Minster intended to deport her with her South African child.  Throughout her time in the State she avidly contacted her local TD who raised her case during a parliamentary debate as she and her family had no idea about what was happening with their case.   After discovering there had been a deportation order made, she continued as required, to attend the Garda National Immigration Bureau who had also seized her passport.  She was certain that she and her daughter would be removed from the State at any stage and such uncertainty caused her family great stress and anxiety.  She is the main carer for her Irish son and her daughter while her husband worked to support the family.  

We welcome the Department’s decision to fully implement the ECJ’s decision in ‘Zambrano’ in granting Applicant’s the right to work and reside in the State on the basis of her citizen child. 

The prospect that families may be forced to separate or leave the State is a very stark choice for many parents of Irish citizen children, but prior to the Zambrano decision, this was an unfortunate reality. We are pleased to be having successes in this area and are working on a number of cases that rely on the Zambrano principles beyond the narrow application to parents of minor Irish citizen children, which we will keep you updated on.

Sarah McCoy, Brophy Solicitors

27.05.11

Keeping you up to date on Zambrano

MINISTER SHATTER’S RESPONSE TO ZAMBRANO

The recently appointed Minister for Justice, Equality and Defence, Mr Alan Shatter, has released a statement in response to the ground breaking judgement by the European Court of Justice  in Ruiz Zambrano v Office National De L'Emploi –  (Case C-34/0). 

The Minister has confirmed that the Department of Justice will examine all cases before the courts where parents of Irish citizen children have challenged deportation orders against them. He has confirmed that the Department will also commence an “urgent review” of all pending applications to revoke deportation orders where the Zambrano judgement may be relevant. The Minister has even specifically referred to cases where deportation orders have already been carried out.

Mr Shatter is further quoted in The Irish Times today as follows;

“Where there is an intact and real relationship there is very little doubt the child is entitled to both parents living with them in the State”.

It thus appears now that the Department face the task of assessing hundreds of cases whereby non EEA parents of Irish citizens have been wrongfully refused the right to live and work in the State.  From the comments of Mr Shatter, it seems that many of these decisions may be quashed by the Department of Justice and permission granted without the need for High Court litigation. This is a very positive and essential step the Minister has taken in order to avoid a flood of High Court Judicial Reviews in respect of each individual case.

In light of this statement, Brophy Solicitors would strongly recommend that all non EEA parents of Irish children who are currently residing in the State without lawful permission, or who have a restricted residency permission, or who have been refused visa to enter the State, or already been deported,  immediately submit an application to the Department of Justice for consideration on the basis of the Zambrano judgement. Please contact us if you have any questions in this regard. 

Karen Berkeley, Brophy Solicitors 

22.03.11

Aftermath of Zambrano

ACTIVITY SURROUNDING ZAMBRANO

The potential impact of the Zambrano decision is already making its mark in the office – we have been inundated with calls from clients, members of the public and press.  Brophy Solicitors has certainly welcomed the decision in terms of the benefits and rights arising from a person’s status as a member of the Union and we are aware that the impact of Zambrano is not to be underestimated.  The decision goes beyond the current Free Movement Directive and Regulations in dealing specifically with what it means to be a citizen of the Union.  

We have already released a statement to the press in respect of one of our cases concerning the deportation of the father of an Irish citizen child. (See article by Jamie Smyth, Irish Times, 10^th March 2011) The father voluntarily left the State following a deportation order having been issued against him, and judicial review proceedings are in place to challenge the deportation order.  We are now working on the application to revoke the deportation order on the basis of the Zambrano judgment. 

Apart from this very obvious instance of how Zambrano may be applied ,we have to deal with a host of potential situations in which the case may have an impact (or may not). In fact, the case has raised many more questions than answers. For example, to which family members of an Irish citizen will the judgement apply? Can partners and spouses of Irish citizens benefit from the judgment? What about the non-marital family and parents who do not have a direct involvement with their children’s upbringing? How will the decision impact guardians?  What exactly does ‘dependency’ entail? Are all children not dependant on their parents? Do the rights of the EU citizen child extend beyond reaching the age of majority? How will social welfare policy be affected and the requirement of habitual residency? Will parents of Irish Citizen children currently resident on Stamp 3 conditions now have their status amended so that they can reside and work in the State? 

It seems to us that many of these questions can only be confirmed by the courts, and potentially the questions will be referred by the High Court back to the European Court of Justice during the determination of particular cases. 

We welcome the statement released by the Immigrant Council of Ireland saying that Ireland’s practice of refusing to give some parents of Irish children permission to live and work in this country must now end and that those parents who had already been deported must be allowed to return. 

We are now working toward submitting applications to revoke deportation orders as well as making change of status applications for family members of Irish Citizens on restricted residency permits. We are also updating applications for visas for family members of Irish citizens. In fact, we are reviewing all current cases to which we think Zambrano may apply and we are also in dialogue with interest groups and NGO’s in an attempt to pool all knowledge and information. We welcome your comments and questions.

Sarah McCoy, Brophy Solicitors

11.03.11

Significant Development in Irish Immigration Law - Decision in Zambrano

MAJOR DEVELOPMENT IN THE APPLICATION OF EU TREATY RIGHTS LAW –ZAMBRANO V OFFICE NATIONAL DE L’EMPLOI

The European Court of Justice has just delivered a judgement - Case C-34/0 Ruiz Zambrano v Office National De L'Emploi - which will have major implications in respect of the right to reside for non EEA family members of Union Citizens within the territory of their own national State. Until now, Union Citizens could only exercise their EU Treaty Rights on moving from one to another Member State, hence the body of law which developed became known as “Free Movement Law”.

Mr Ruiz Zambrano and his wife, both Colombian nationals, applied for asylum in Belgium due to the civil war in Colombia. The Belgian authorities refused to grant them refugee status and ordered them to leave Belgium. The couple continued to reside in Belgium while awaiting applications to regularise their status. Mr Ruiz Zambrano's wife gave birth to two children who acquired Belgian nationality. At the time of birth of the children, Mr Zambrano was financially self-sufficient. He later became unemployed and was refused unemployment benefits because the Belgian authorities found that he did not comply with the foreigners' residence requirements under national legislation. Mr and Mrs Ruiz Zambrano were also refused residency application in their capacity as ascendants of Belgian nationals.

Proceedings were issued on behalf of Mr and Mrs Zambrano, and a reference was made to the European Court of Justice seeking clarification on whether the Zambranos could rely on rely on European Union law to reside and work in Belgium on the basis of their parentage to Union citizen children who have never exercised their rights to free movement.

The ECJ confirmed that as Union citizens, the Zambrano children enjoyed the fundamental status of nationals of the Member States. The ECJ confirmed that European Union law precludes national measures, which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The ECJ held that if the Belgium authorities refused a right of residence and work to Mr and Mrs Zambrano, this would in effect deprive their dependant Union citizen children of their fundament rights to reside within the European Union, as they would be obliged to leave Belgium with their parents.

In summary, the ECJ held that as follows;

“Citizenship of the Union requires a Member State to allow third country nationals who are parents of a child, who is a national of that Member State, to reside and work there, where a refusal to do so would deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. This requirement applies even when the child has never exercised his right to free movement within the territory of the Member State.”

The implications of this judgement are potentially very wide ranging. The ECJ’s reasoning can be applied to all domestic law cases whereby Union citizens are seeking residence permission for their family members or dependants within their own national State. Thus, Irish citizens may now seek to rely on a huge body of European legislation and caselaw in respect of the right to be joined and reside with family members, such law having previously been deemed to be extraneous to their case. Many deportation orders against parents of Irish citizen children may have to be reconsidered, including deportations which have already been effected. Similarly, visa applications in respect of family members of Irish citizens may no longer be regarded to be at the absolute discretion of the Minister for Justice. Previously refused visa applications may require review. 

The next year will certainly be an interesting one in the field of Irish Immigration Law! We look forward to hearing your thoughts and questions on this important development.

Karen Berkeley, Brophy Solicitors

10.03.11