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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> P. (R.) & Anor v. Minister for Justice, Equality and Law Reform [2004] IEHC 223 (17 June 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/223.html Cite as: [2004] IEHC 223 |
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[2004] IEHC 223
Between/
-Applicants
-Respondent
Judgment of Mr. Justice Paul Butler delivered the 17 day of June, 2004.
The applicants are respectively a Ukrainian national and an Irish Citizen, who were in a relationship for some time and married on 24th April, 2003.
The first named applicant was unsuccessful in his application for asylum in the State. A deportation order was made against him on the 7th April, 2003. As indicated above, the applicants married on 23rd April, 2003, having been in a relationship together prior to that, which relationship was known to the respondent on the date of the making of the deportation order. By letter dated 2nd May, 2003 the solicitor for the applicants informed the respondent of the said marriage, indicated that the applicants' marriage was bona fide and that they intended living together as a family unit and requested the respondent to set aside the deportation order.
Following the making of the deportation order and the said letter the first named applicant was required to attend at Wicklow Garda Station and at other venues and he duly did so.
By letter dated 27th August, 2003 the respondent acknowledged the first named applicant's said request for revocation of the deportation order, indicated that a "more substantive response will issue at the earliest opportunity" and advised that no arrangements were in place as yet for the deportation of the first named applicant.
The applicants' Solicitor sought an undertaking that the first named respondent would not be deported pending a determination of his application for residency. Such an undertaking was not forthcoming and by Order dated 2nd September, 2003 the President of the High Court granted an interim injunction and on 5th September, 2003 the respondent gave an undertaking that the first named applicant would not be deported pending the hearing of this action.
By order dated 23rd March, 2004 Mr. Justice Kearns granted leave to apply by way of judicial review for the reliefs set forth at paragraphs d (1), (2) and (5) of the Statement of Grounds herein. They are:
"(1) An order of prohibition restraining the respondent, his servants or agents, from giving effect to the deportation order made in respect of the first named applicant dated on or around 7th April, 2003.
(2) A declaration that the respondent, his servants or agents, are not entitled to give effect to the said deportation order without first having regard to the material change in the first named applicant's circumstances since the date of the making of the said order, in particular, his marriage to the second named applicant.
(5) A declaration that the Constitutional rights of the second named applicant would be infringed should the respondent, his servants or agents give effect to the said deportation order and deport the first named applicant without considering the material change in the first named applicant's circumstances, namely the marriage of the first named applicant herein."
Section 3(11) of the Immigration Act, 1990 provides that "the Minister may by order amend or evoke an order made under this section, including an order under this sub-section". (Section 3 refers to deportation orders).
The following is either common case or not seriously in contention:-
(1) The deportation order was validly made.
(2) The applicants' marriage is bona fide and they are a "family" within the "institution of marriage" within the meaning of Article 41 of the Constitution.
(3) In the light thereof the Minister is obliged to consider the application of the first named respondent to have the deportation order revoked under s. 3(11) aforesaid, having regard to the change of circumstances brought about by the said marriage. The second named applicant is also entitled to have the same considered as aforesaid. It is not contended, for the purposes of these proceedings, that either of the applicants has a right per se to have the deportation order revoked by reason of the said marriage.
The only real issue in this case is, therefore, whether this Court is empowered to grant a stay on the execution of the said deportation order pending consideration as aforesaid by the respondent.
I have been given no indication as to how long it would take the Minister to consider the application in the light of the said changed circumstances. As all the evidence in this case supports the proposition that the marriage is a bona fide one, that is an issue that should take little or no time and I cannot, therefore, see that such consideration would take more than a couple of weeks. I do accept the respondent's argument that, from the respondent's point of view, the issue of these proceedings in effect "froze" consideration of the application to revoke the deportation order. The respondent had, however, effectively sat on the said order for a considerable time, during which time the first named applicant was showing up as and where directed by the respondent.
The effect, therefore, of staying the further implementation of the said order for, at most, a few weeks would in itself have no material consequences for the respondent. Not staying it would, in the possible event of the respondent acceding to that application, have the effect of causing great inconvenience and expense to each of the applicants. Not to grant such a short stay would, in my view, be entirely disproportionate to the end sought to be achieved. This is a question of considering Constitutional rights.
I am satisfied in the circumstances of this case that the Court not only has power to but must intervene.
I wish to stress, however, that this decision cannot affect either the right of the respondent to proceed with the implementation of the deportation order or to establish any sort of automatic stay on the operation of such order by reason or events, including marriage, arising after the making thereof.
I am not disposed to grant an order in terms of paragraph 1 of the Statement of Grounds. I believe that a declaration in terms of paragraph 2 is sufficient to meet the application that is "a declaration that the respondent, his servants or agents are not entitled to give effect to the said order of deportation without first having regard to the material change in the first named applicant's circumstances since the date of the making of the said order, in particular, his marriage to the second named applicant".
I make such a declaration but I shall hear the parties further on the precise form of the Order herein if required.
Approved: Butler J.
