Court of Appeal: Challenge to the enforcement of deportation struck out for want of jurisdiction

About this case:

• Judgment:
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Delivering the judgment of the Court, Mr Justice Gerard Hogan stated that the application for judicial review amounted to a collateral attack on the validity of the deportation order, and the Court of Appeal had no jurisdiction to entertain the appeal absent the grant of a certificate by the High Court.

Background

Mr AS, an Indian national, arrived in Ireland in March 2016 and claimed asylum. AS did not show up to his interview with the Refugee Applications Commissioner, no explanation was given, the application was deemed to have been withdrawn, and AS was subsequently informed that his entitlement to remain in the State had expired but that he could make an application for subsidiary protection. AS failed to respond, and a deportation order was ultimately made in October 2016.

Throughout the asylum process there had been no engagement at all by AS with the authorities; and it was only when AS was arrested that he sought to contest his deportation from the State.

AS then informed the authorities that he had been in a relationship with Ms JM, a Polish national, and that their son, BSS, had been born in September 2016. As such, AS sought to assert a derivative right to remain in the State (Case C-34/99 Ruiz-Zambrano; Case C-135/15 H.C. Chavez-Vilchez).

In effect, the argument was that if AS were to be deported, this might have the effect of depriving BSS of his right to live in the territory of the European Union.

Justice Hogan noted that prior to the arrest of AS, Ms JM had left him along with their son, and was now based in Donegal.

The High Court

Critically, in these judicial review proceedings, the application did not purport to be made in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Section 5(1)(c) requires any challenge to the validity of a deportation order to be made by way of application for judicial review within 28 days of the making of that decision. Time may be extended where the High Court considers that there is good and sufficient reason for so extending time.

The principal relief sought by AS was an order that “the implementation of the deportation order…at this juncture would be unlawful.” AS in effect sought to restrain the enforcement of his deportation order pending the determination of his application under the Immigration Act 1999 to revoke the deportation order since he is the father of an EU citizen child.

The High Court held that these proceedings amounted to a collateral attack on the validity of the deportation order, so that the provisions of s. 5 of the 2000 Act applied to the application for judicial review. Furthermore, the application was out of time and an extension for this purpose was refused.

No application was made for a certificate permitting an appeal to be taken to the Court of Appeal in respect of that decision for the purposes of s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000.

Court of Appeal

The Court had to consider what circumstances an applicant could seek to restrain the enforcement of a deportation order otherwise than by means of an application for judicial review in accordance with the requirements of s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

Delivering the judgment of the three-judge Court, Justice Hogan stated that if the present proceedings were governed the Illegal Immigrants (Trafficking) Act 2000, then the Court of Appeal would only have jurisdiction to hear such an appeal if the appropriate certificate for this purpose was granted by the High Court.

Justice Hogan was satisfied that any application to restrain the enforcement of the deportation order amounts in substance to a questioning of the validity of that order so that the provisions of s. 5(1)(c) of the Illegal Immigrants (Trafficking) Act 2000 accordingly apply.

In Nawaz v. Minister for Justice, Equality and Law Reform IESC 58, 1 I.R. 142 it was found that:

“…an action, brought in the context of the relevant process which is being applied to Mr Nawaz, which seeks a declaration of invalidity of the underlying legislation under which the particular measure can be adopted, can be described as a challenge which has the potential to question the validity of the relevant measure. The only purpose of Mr Nawaz challenging the constitutionality of s. 3 of the Act of 1999 is so that any measures which might be adopted under that section will be regarded as invalid…”

Similarly, in FO v. Minister for Justice and Equality IEHC 206 it was found that “the deportation and the deportation order are as inseparable as the dancer from the dance”; and the proceedings amounted to a collateral attack on the validity of the deportation order and that the requirements of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000 could not thereby be by-passed.

Justice Hogan concluded that the reasoning in Nawaz and in FO were applicable to the present case.

The entire object of the present proceedings was to restrain the enforcement of the deportation order, i.e. to question the validity of the deportation order, since if “…the dancer of the deportation order cannot be separated from the dance of the subsequent enforcement of that order, a challenge to its enforcement implies a questioning of the validity of that order” within the meaning of s. 5(1)(c) of the Illegal Immigrants (Trafficking) Act 2000.

In all the circumstances, Justice Hogan held that, absent the grant of a certificate by the High Court pursuant to s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000, the Court of Appeal had no jurisdiction to entertain this appeal.