High Court refuses leave for judicial review of deportation due to lack of prejudice despite significant ministerial delay.

Neutral Citation Number: [2008] IEHC 402

THE HIGH COURT

2005 739 JR

BETWEEN

U. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE REFUGEE APPEALS TRIBUNAL,

THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Mr. Justice Hedigan, delivered on the 28th day of November, 2008.

1. The applicant is seeking leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform (“the

Minister”) to make a deportation order in respect of her.

Background

2. The applicant, who is a national of Nigeria, applied for asylum upon arrival in Ireland on 12th September, 2000. The basis of her

application for asylum is immaterial for the purposes of the present challenge. She received a negative recommendation from the

Office of the Refugee Applications Commissioner, and her appeal from that decision was rejected by the Refugee Appeals Tribunal.

She was then informed that the Minister was proposing to deport her, and was invited to make representations seeking leave to

remain in the State. Representations were made on her behalf, which were received by the Minister’s Department on 31st July, 2002.

There was no communication between the applicant and the Minister between that date and 13th May, 2005, when her file was

considered under s. 3 of the Immigration Act 1999 and s. 5 of the Refugee Act 1996. The Minister made a deportation order in respect

of the applicant on 19th May, 2005 and notified the same to the applicant by letter dated 30th May, 2005.

Extension of Time

3. The applicant commenced the within proceedings some three weeks after the 14-day time-limit set out in s. 5 of the Illegal

Immigrants (Trafficking) Act 2000 had expired, running from the date of the Minister’s decision. The respondent has, it seems,

consented to the extension of time and I am happy to do so.

The Submissions

4. The applicant contends that the Minister’s decision to make a deportation order in respect of the applicant was based on

information which was two years and nine months old and which was out of date. It is submitted that the Minister was, therefore,

acting in breach of fair procedures. Reliance is placed on the judgments in Butusha v. The Minister for Justice, Equality and Law

Reform (Unreported, Peart J., High Court, 29th October, 2003), Abdukhareem v. The Minister for Justice, Equality and Law Reform

(Unreported, Gilligan J., High Court, 7th July, 2006), and the judgment of Lord Bingham in the House of Lords in EB (Kosovo) v.

Secretary of State for the Home Department [2008] 3 W.L.R. 178.

5. The respondents have sought to distinguish the facts of Butusha, Abdukhareem, and EB (Kosovo) from the facts of the present

case. They contend that the Minister is obliged to consider the matters set out in s. 3(6) of the Immigration Act 1999 only “so far as

they appear or are known to the Minister” and it is contended that the Minister complied with that obligation. It is submitted that the

applicant could have made additional representations at any time indicating that her circumstances had changed, but she did not do

so. Reliance is placed in that regard on Lupascu v. The Minister for Justice, Equality and Law Reform [2004] IEHC 400, where Peart J.

held that applicants are not simply an inactive or passive participant in the process. Rather, he said, applicants are obliged to act in

their own interests; they cannot sit back and wait for things to happen and later complain in that regard.

The Court’s Assessment

6. This being a leave application to which s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies, the applicant is required to

establish substantial grounds for her contention that the Minister’s decision should be quashed. As is now well established, this means

that grounds must be shown that are reasonable, arguable, and weighty, as opposed to trivial or tenuous.

7. The delay in this case between the receipt of the applicant’s representations seeking leave to remain and the making of the

deportation order ran to some two years and nine months. This period of inordinate delay is a matter of great concern to the Court;

such delay is most undesirable. As this Court has noted on several occasions, it is of the utmost importance that those who apply for

the protection of this State are given an answer within a reasonable period of time, and that their application is determined promptly

and with due expedition. It is most unfair to leave applicants waiting in a legal limbo. Strangers in a foreign country and unfamiliar with

local customs, these people are highly vulnerable in a foreign country. To leave such people without a decision for extended periods

of time is to heighten the uncertainty and stress to which they are already exposed. The following statement of Lord Bingham in the

House of Lords’ decision in EB (Kosovo) (cited above), is illustrative of the effects of such uncertainty:-

“An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any

relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of

severance by administrative order.” (page 185)

8. That said, account must be taken of the fact that the delay has not, in the present case, resulted in any prejudice being caused

to the applicant. In each of the cases upon which the applicant has sought to rely, i.e. Butusha, Abdukhareem and EB (Kosovo)

(cited above), the respondent’s delay resulted in prejudice to the applicant. In the present case, there were no relevant or significant

changes in the applicant’s facts or circumstances between 2002 and 2005. Although not strictly relevant, it is of note that since

2005, there has been what might be described as a significant change in the applicant’s private and family life: in August, 2008, she

married a man who is not an Irish national but has, it seems, been working in the State for the past eight years. On that basis, an

application has been made seeking revocation of the deportation order; the Minister’s decision is currently awaited on that

application. That notwithstanding, however, no such changes had occurred prior to the making of the deportation order such that the

Minister’s delay could be said to have prejudiced the applicant. In the circumstances, in the absence of prejudice, I am not satisfied

that substantial grounds have been established and, accordingly, I must refuse leave.