About this case:

• Citation:
  [2024] IESC 3
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Elizabeth Dunne

Delivering judgment for the Supreme Court, Ms Justice Elizabeth Dunne warned that “juxtaposing the employment prospects and the question of whether the minister has an obligation to grant permission to work or reside in the State can create confusion”, and that it would “be preferrable to deal with such an observation under a different heading, such as the common good, or considerations of national security and public policy.”

Background

On 13 August 2011, the appellant arrived in Ireland from Pakistan. He made an asylum application three days later which was refused on 17 November 2011. He appealed that refusal to the Refugee Appeals Tribunal, which was deemed abandoned on 22 May 2012 as the appellant inexplicably failed to attend an oral hearing.

The appellant was informed on 31 May 2012 that the minister proposed to make a deportation order in respect of him. However, the appellant had married a Latvian national resident in Ireland three months earlier, and on 8 October 2012, was granted permission to remain in the State for five years as the spouse of an EU national exercising free movement.

At the expiry of his permission, the appellant made a second application as a spouse of an EU national. The minister raised concerns about the legitimacy of the relationship, which the appellant did not respond to. The minister found the marriage to be one of convenience and declared his permission void ab initio. The appellant was informed of the minister’s proposal to deport him pursuant to s. 3(6) of the Immigration Act 1999, and was invited to make representations.

The appellant submitted inter alia that if he was deported, his takeaway business could fail. The appellant was informed of the decision to deport him on 30 September 2020, with the minister noting under the heading “employment prospects” in the ‘examination of file’ that the appellant was working in the State, but did not have the minister’s permission to reside or work in the State and that there was no obligation on the minister to grant permission to facilitate the appellant’s employment in the State.

The High Court

The appellant sought leave to apply for judicial review, alleging that the minister erred in law in considering his employment prospects under s.3(6)(f) by applying the wrong test by considering his permission to reside or work, rather than his employment prospects.

The High Court determined inter alia that the reference to the appellant’s lack of permission to reside was not fatal to the deportation order’s validity, and as per A.N.A. v. Minister for Justice [2021] IEHC 589 and Huang v. Minister for Justice [2021] IEHC 630, the reference to a lack of permission comprised a statement of fact only and did not constitute a negative evaluation of the appellant’s employment prospects.

The court concluded that the appellant was not entitled to relief in any event in light of his conduct which showed inter alia a clear disregard for the asylum system, as per P.N.S. v. Minister for Justice [2020] IESC 11. The appellant sought and was refused leave to appeal to the Court of Appeal.

The appellant sought leave to appeal to the Supreme Court, which was granted on 3 May 2023.

The Supreme Court

Ms Justice Dunne noted that the issues to be determined were whether the minister applied the wrong test when considering the appellant’s employment prospects, and whether the High Court was correct to refuse relief on grounds of misconduct and lack of candour.

The court considered M.A.H. v. Minister for Justice [2021] IEHC 302 , in which Ms Justice Tara Burns quashed a deportation order in respect of an applicant medical doctor where the minister inter alia had allowed the applicant’s lack of permission to remain in the State to nullify her otherwise positive analysis of the applicant’s employment prospects, expressly stating that “her employment prospects would have to be deemed to be reasonable in the current economic climate, in the event that she held an appropriate immigration permission”.

Ms Justice Dunne also considered A.N.A., Huang and Talukder v. Minister for Justice [2021] IEHC 835, agreeing with Ms Justice Niamh Hyland in Talukder that “where it is clear that a person’s employment prospects are limited for specific reasons, any observation to the effect that the person in question does not have the right to reside or work in the State, or to the like effect that the minister does not have an obligation to grant permission to reside or work in the State, will not have the effect of setting the person’s employment prospects at nought”.

However, the judge emphasised that “juxtaposing the employment prospects and the question of whether the minister has an obligation to grant permission to work or reside in the State can create confusion”, noting that while the minister was entitled to point out that good employment prospects did not oblige her to grant permission to reside and work, it would be “preferrable to deal with such an observation under a different heading, such as the common good, or considerations of national security and public policy”.

Turning to the case before her, Ms Justice Dunne found that the examination of file showed a full consideration of all matters put forward on behalf of the appellant, and that the inclusion of the sentence as to the appellant’s lack of permission to reside or work in the State was merely a statement of fact which did not negative his employment prospects.

Highlighting that the examination of file “is but one part of the process”, the Supreme Court pointed out that “sight should not be lost of the reasoning of the minister set out in the letter accompanying the decision to deport”, and in the circumstances, the court could see no reason to quash the minister’s decision.

Considering the refusal of relief based upon the appellant’s conduct, Ms Justice Dunne opined that in light of inter alia P.N.S. v. Minister for Justice [2020] IESC 11, “while there is a jurisdiction to refuse relief on a discretionary basis because of an abuse of the asylum and immigration system, it is a jurisdiction that must be used sparingly and cautiously. As McKechnie J. observed, it should only be resorted to where the abuse in question is serious and flagrant, and deliberately engaged in in such a way so as to show a clear disregard for the asylum system.”

The court outlined that “the State has legal obligations, and if there were humanitarian concerns, or any issue as to the safety of the applicant were they to be deported to their country of origin, it is difficult to see how it could be appropriate in those circumstances to refuse relief by reason of the misconduct of the applicant in the course of the process”.

On the facts, Ms Justice Dunne determined that whilst there were “unsatisfactory elements” to the appellant’s application, “the Court should nevertheless have regard to the exigencies of the case, to humanitarian concerns, and to the necessity to ensure that the State complies with its legal obligations. On balance, on the facts of this case, I am not satisfied that the circumstances of this case were such as would have merited refusal of relief on discretionary grounds.”

Conclusion

The court determined that the inclusion of a sentence to the effect that the minister is not obliged to grant permission to reside or work under the heading of ‘employment prospects’ was not fatal to her decision, and accordingly, the court refused the appeal.

E.M. v. Minister for Justice and Equality [2024] IESC 3