H v Minister for Justice & Equality [2019] IEHC 836 (09 December 2019)
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Page 1 ⇓
THE HIGH COURT
[2019] IEHC 836
[2019 No. 458 JR]
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT
2000, AS AMENDED
BETWEEN
H
APPLICANT
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr Justice Max Barrett delivered on 9th December, 2019.
1. The immigration history of Mr H, a non-EU national, is perhaps best detailed by way of
the chronological summary that follows:
20.12.2010.
Mr H travels from a non-EU country
to UK on a visa issued to him under
a false identity.
07.03.2011.
Mr H arrives in Ireland.
16.06.2011.
Office of the Refugee Applications
Commissioner (“ORAC”) makes an
order for Mr H’s Dublin II transfer to
the UK.
20.07.2011.
Mr H fails to present to the Garda
National Immigration Bureau
(“GNIB”) for transfer to the UK.
28.03.2013.
Having accepted the processing of
Mr H’s claim due to the passage of
time, ORAC recommends that Mr H
not be given refugee status.
24.06.2013.
Refugee Appeals Tribunal (“RAT”)
refuses Mr H’s refugee status appeal.
21.08.2013.
Mr H applies for subsidiary
protection.
27.08.2015.
ORAC notifies Mr H of its refusal of
subsidiary protection.
14.09.2015.
Mr H attempts subsidiary protection
appeal to the RAT.
Page 2 ⇓
25.10.2015.
02.05.2017.
23.11.2017.
06.02.2018.
11.02.2019.
28.02.2019.
07.03.2019.
28.03.2019.
12.06.2019.
08.07.2019.
09.07.2019.
Mr H attempts to take flight from
Belfast to Birmingham and flees
airport when approached by
immigration officials.
Mr H attends RAT appeal hearing.
RAT refuses Mr H’s subsidiary
protection appeal.
Mr H’s solicitors make
representations under s.3 of the
Immigration Act 1999.
Minister writes to Mr H’s solicitors
seeking explanation of photos on Mr
H’s Facebook page that were
apparently taken in 2016.
Mr H’s solicitors explain that Mr H
had sought to establish on his
Facebook page that he was
somewhere where he was not.
Minister seeks further explanation
re. Facebook issue.
Mr H’s solicitors make further
submissions and enclose evidence
purporting to show Mr H’s residence
in Ireland since 2011.
Deportation order is communicated
to Mr H, together with an
Examination of File concluding that
“it cannot be stated with certainty”
that Mr H was resident in Ireland
since 2011.
Mr H granted leave to challenge
deportation order.
Mr H is arrested and remanded on
burglary and theft charges.
Page 3 ⇓
01.08.2019.
07.08.2019.
22.08.2019.
23.08.2019.
Aug-Oct 2019.
Mr H released on bail and required to
sign at Garda station daily in County
Galway.
Mr H signs on with Gardaí in Galway
but fails to present as required to
GNIB in Dublin.
Mr H’s solicitors write to GNIB
seeking new presentation date.
Chief State Solicitor’s Office
(“CSSO”) send (by email) a letter
dated 22.08.2019 to Mr H’s solicitors
withdrawing the undertaking not to
deport in light of the non-
presentation on 07.08.2019.
Correspondence between Mr H’s
solicitors and CSSO culminating in
CSSO refusal (in letter of
18.10.2019) to provide undertaking.
2. Arising from the foregoing, Mr H has brought the within application seeking (a) an order
of certiorari quashing the decision of the Minister of 24.05.2019 to make a deportation
order in respect of Mr H, and (b) an order directing that Mr H’s application for permission
to remain be remitted to the Minister for fresh consideration.
3. The grounds upon which the reliefs aforesaid are sought are twofold, being, per the
Statement of Grounds:
“A. In requiring that the Applicant prove ‘with certainty’ that he was ordinarily and
continuously resident in the State [during a certain period]…the Respondent
imposed an unreasonable and unlawful standard of proof in relation to this central
issue. The Respondent’s failure to determine this issue on a balance of probabilities
basis renders the deportation order decision invalid.
B. The Respondent acted unreasonably and irrationally in finding [that] ‘the doubts
which exist in relation to [the Applicant’s] continuous residence in the State at all
times since March 2011 are so great that the benefit of the doubt cannot
reasonably be applied in [the Applicant’s] favour’. In circumstances where the
Respondent’s doubts were based solely on Facebook photos uploaded by the
Applicant during the relevant period, an issue fully explained by the Applicant, the
Respondent’s finding in this regard was unreasonable and irrational.”
Page 4 ⇓
4. Three legal questions are posited to arise from the foregoing. These are considered
hereafter. Before proceeding to consider them, the court notes that the section of the
Examination of File that has been impugned arises from the Minister’s application to the
facts before him of the McMahon Report, i.e. the Final Report of the Working Group to
Report to Government on Improvements to the Protection Process, including Direct
Provision and Supports to Asylum Seekers (June 2015). (The section is headed “Possible
relevance of the Recommendations contained in the Working Group’ on the Protection
Process to [Mr H’s]…case”; however, it clearly involves an effort to apply the said
recommendations so far as relevant). The court accepts the submission of counsel for the
Minister that the said Final Report, however impressive (and it is impressive), is, at this
time, but a report, nothing more. It has not, at this time, been adopted as Government
policy and/or transposed into law. The speech of the incumbent Minister to which the
court was referred, in which the Minister states that “I want to reiterate my absolute
commitment to ensuring the McMahon Report is implemented” seems to the court to
involve no more than an aspirational statement of intention that the report will be
implemented, presumably in some formal manner. All that said, when one comes to the
section of the Examination of File that has been impugned here, once the Minister
voluntarily elected in that section to apply the McMahon Report so far as relevant – and
the Minister clearly did not so proceed out of mere intellectual curiosity but rather out of a
sense that had the requirements of the Report been satisfied a permission to remain
would have been granted – yielded a concomitant obligation, as a matter of fair
procedures, to do so faithfully and properly, notwithstanding that it was an elective
standard which the Minister had brought to bear in this regard.
(1) What is the appropriate standard of proof for the Minister to apply in relation to factual
matters relevant to a decision on whether to make a deportation order?
5. In deciding how to proceed under s.3 of the Immigration Act 1999, the Minister is
engaged in a civil administrative procedure concerning people whom it is proposed to
deport; he is not punishing them; the balance of probabilities is therefore the applicable
standard when it comes to assessing factual matters relevant to his decision. If the
Oireachtas wants to establish a more favourable standard, it may, but it has not. Counsel
for the Minister has noted that there is no precedent on this aspect of matters. The court
inclines to the view that the likely reason for an absence of precedent is because the
answer is clear. There are related cases (admittedly not quite on point) concerning the
applicability of the civil standard of proof in the immigration law context, e.g., O.N. v.
Refugee Appeals Tribunal [2017] IEHC 13, W.H. v. The International Protection Appeals
Tribunal [2019] IEHC 297 and M.E.O. (Nigeria) v. The International Protection Appeals
Tribunal [2018] IEHC 782, which buttress the court in its conclusion as to the standard of
proof in the s.3 context.
(2) If the appropriate standard of proof in such circumstances is the balance of probabilities,
did the Minister err in law in requiring that Mr H prove “with certainty” that he was in
Ireland at all times during a stated timeframe? (The “with certainty” wording appears in
the Examination of File of 02.05.2019).
Page 5 ⇓
6. ‘Yes’. Had this just been a single slip, the court would likely have reached the opposite
conclusion and offered as its reason that administrative decisions do not fall to be parsed
word-by-word when it comes to assessing their lawfulness. However, it is not just a single
slip. Thus (i) the Minister’s letter of 11.02.2019 states that “Where doubts exist as to a
person’s…residence…INIS reserves the right to carry out such reasonable checks as will
serve to dispel such doubts” (but doubts can continue to present even when the balance
of probabilities falls to be applied in one’s favour and this reference to doubts, and more
particularly to the need for them to be dispelled, suggests that a more stringent standard
than the civil standard was being brought to bear); (ii) the Minister’s letter of 07.03.2019
refers to “the Minister’s doubts” (again, however, doubts can continue to present even
when the balance of probabilities falls to be applied in one’s favour and this reference to
doubts, in effect as something to be overcome, suggests that a more stringent standard
than the civil standard was being applied); and (iii) the Examination of File aforesaid
states “The doubts which exist in relation to his continuous residence in the State at all
times since March 2011 are so great that the benefit of the doubt cannot reasonably be
applied” (again, however, (a) doubts can continue to present even when the balance of
probabilities falls to be applied in one’s favour and this reference to doubts suggests that
a more stringent standard than the civil standard was being applied; also (b) the
reference to the benefit of a doubt being reasonably applied is highly redolent of the
criminal standard of ‘beyond reasonable doubt’ being brought to bear). Each of these
instances ((i) - (iii)) is problematic; cumulatively the court does not see that it could
conclude otherwise than it has, viz. that the wrong standard of proof has been brought to
bear.
(3) Did the respondent act unreasonably and irrationally in finding that “the doubts which
exist in relation to [the applicant’s] continuous residence in the State at all times since
March 2011 are so great that the benefit of the doubt cannot reasonably be applied in
[the applicant’s] favour”, in circumstances where the respondent’s doubts were based
solely on Facebook photos uploaded by the applicant during the relevant period, “an issue
which had fully been explained by the Applicant” (the last-quoted text is the wording of
Mr H’s counsel).
7. Providing a purported excuse for an issue perceived to present does not inexorably yield
the logical conclusion that the said perceived issue has “fully been explained”, (ii) the
entire file was considered, not just the Facebook photos, (iii) it was well within the
competence of the Minister as decision-maker to decide whether or not he accepted (and
that he did not accept) the explanation provided, (iv) were it not for the fact that the
wrong standard of proof appears to have been brought to bear, the court does not see
that any other difficulty would present in terms of the conclusion reached in this regard.
Conclusion
8. Applying the wrong standard of proof is so fundamental an error that the court does not
see that it can do anything other than grant the order of certiorari sought and remit the
within matter to the Minister for fresh consideration. A number of reasons have been
offered to the court as to why it might otherwise exercise its discretion. These largely
Page 6 ⇓
concern the fact that Mr H has sought (and he has repeatedly sought) to ‘play ducks and
drakes’ with the immigration system. However, even such a man is entitled to have the
correct standard of proof brought to bear in such applications as he makes. What gave
the court greater cause for pause in terms of how to exercise its discretion was the fact of
the charges that have been brought against Mr H and for which he has been bailed
pending trial. There was suggestion in the submissions that even if Mr H is acquitted the
mere fact that he has been charged would adversely affect any fresh character/conduct
assessment that might be made under para.3.129 of the McMahon Report. Even if that is
so, it seems to the court that as Mr H enjoys the presumption of innocence at this time
and may be acquitted, it is still better that a decision which has been decided by
reference to the wrong standard of proof be quashed and the matter re-decided. It may
well make no difference to the outcome of the deportation process; however, it is
necessary that matters be processed correctly and by reference to the correct standard of
proof. The granting of the order of certiorari and the remittal of matters to the Minister
for fresh consideration will not, of course, make any difference as regards how Mr H fares
within the criminal trial process or what penalty will follow if he is found guilty, and he
may be acquitted. As Charleton J. observed earlier this year in B.S. v. The Refugee
Appeals Tribunal [2019] IESC 32, para. 18, “[j]udicial review is not granted as of right but
by reason of justice”. It would be a striking injustice to leave standing a decision that has
been decided by reference to the wrong standard of proof.
Result: Judgment in favour of the applicant.
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