High Court: Deportation orders quashed after voluntary DNA testing
The High Court has quashed the deportation order of two relatives of an EU citizen, having heard that they offered to undergo DNA testing at their own expense. The court found the Minister for Justice erred in law on a number of grounds.
MH lived in Pakistan until 2009, having married in 1999. The couple had a daughter, SH. MH’s husband died in 2009. Her brother had emigrated to the United Kingdom in 2001, and became a UK national and an EU citizen.
As a widowed mother, MH was in a “precarious position” until her brother assisted her. He brought her to the UK to live with him. In July 2014, MH and SH came with him to Ireland, after he secured employment here. MH has remained with him in Ireland, “getting a maths-related qualification and putting her daughter through school”. The daughter has proceeded to further studies.
An EU treaty rights application took place in May 2015. There were approximately 150 pieces of documentation relating to the familial arrangements in the UK, including the financial support situation, in the verifying affidavit filed in support of the application.
Treaty rights application
In November 2015, the Minister refused the EU treaty rights application on the “surprising” basis that insufficient evidence of dependency on the EU national had been provided. On 14 December 2015, a review of this decision was sought. The Minister sought further information a number of times, which information was provided, some of it for the second time. The court noted that it is “inappropriate that the State should be provided with documentation and then raise a query which essentially seeks that the same documentation be provided to it a second time”.
In February 2017, the Minister wrote to MH indicating that the review had been unsuccessful, stating that they did not fulfil the criteria in respect of permitted family member as set out in Reg.3(5) of the European Communities (Free Movement of Persons) Regulations 2015. Mr Justice Max Barrett said: “Regulation 3(5) has nothing to do with those criteria (it addresses who is a “qualifying family member”), so there was a clear error of law presenting in this regard and were that decision the subject of the within proceedings (it is not), it would have fallen on that ground.”
In February 2017, the Minister indicated that a deportation process would ensue. MH’s solicitors made submissions pursuant to the Immigration Act 1999 s.3 and also concerning the free movement regulations application.
A pre-deportation review occurred. In September 2018, the Minister informed MH that she was to be deported. Mr Justice Barrett said that it is “discourteous in the extreme” that a person facing the prospect of deportation should be left ‘dangling’: “No good explanation has been offered for the 18-month delay which presented in terms of making the deportation order; the court suspects that this is because no good reason exists.”
MH’s solicitors advised the Minister that they, and the EU citizen, were willing to submit themselves to DNA testing should the Minister so require. They offered this at their own expense. This invitation was never acted upon. The court said it was “incomprehensible” that the Minister did not take up this offer.
The court accepted that the DNA evidence came after the impugned decision but noted “the ultimate object of government and of any branch of government is to do what is lawful and right”, and that the review of the decision on the deportation order included words like “purported” in relation to the blood relationship between the applicants and the EU citizen. “That adjective clearly no longer applies after the DNA testing,” the judge said.
The judge was “surprised” that the Minister did not revisit the deportation decision in light of the DNA evidence proving “that the applicants have been telling the truth all along as to their being blood relatives”.
The judge considered that the applicants’ solicitors had not yet received anything beyond a brief letter of acknowledgement to their letter of 16 March 2017. The Case Reviewer indicated three times in her review that the applicants’ representations to the Minister “are currently being considered”. As a result, citing the judgment of Mr Justice Colm Mac Eochaidh in NJ v. Minister for Justice, Equality and Law Reform  IEHC 603, the judge said that he “cannot but conclude that the respondent’s deliberations as to whether to deport are inchoate with the result that the deportation orders must fall”.
The judge was not satisfied that the enquiries engaged in by the Reviewer could be said to have been adequate in circumstances where the offer to undergo DNA testing was made. The court borrowed wording from Mr Justice Peter Charleton in PO v Minister for Justice  IESC 64, on which the Minister sought to rely, sometimes the same points fall to be made in a different context without there being any redundant “regurgitation of old and rejected contentions”.
The court “cannot but note its surprise” that the Minister would now “turn up in court and argue that some such regurgitation was at play when everyone in the court now knows that nothing of the sort was at play”, as the MH and SH are, per the DNA evidence, blood relatives of the EU citizen.
“Yes, the deportation decision falls to be judged by reference to what was known at the time, but arguments in court surely fall to be tempered by what is known at this time, if only in an effort to ensure that the end-result arrived at by government (in its executive and/or judicial guise) is both legally correct and otherwise just.”
The court considered that a deportation order would breach Article 8 of the European Convention on Human Rights in circumstances where they would lose the financial and emotional support of MH’s brother and it would frustrate the educational advancement of the applicants. The Reviewer “did not conduct a proper examination” of the issues pertaining to their ECHR rights.
The court found that the Minister “erred in law and perhaps also fact in making the decision to deport”. The judge stated that the Minister’s deliberations in the deportation matter are inchoate, that the decision to deport was unreasonable, and that the Minister “erred in law and perhaps also fact in failing to have proper regard to the provisions and consequences of s.3(6) of the Immigration Act 1999, Art.8 ECHR and s.50 of the International Protection Act 2015”.
The court granted certiorari and the deportation order was quashed.
© Irish Legal News Ltd 2020