[New search]
[Printable PDF version]
[Help]
Page 1 ⇓
THE HIGH COURT
[2019] IEHC 840
[2019 No. 1403 S.S.]
BETWEEN
J.H. (ALBANIA)
AND
THE GOVERNOR OF CLOVERHILL PRISON
AND
APPLICANT
RESPONDENT
[2019 No. 641 J.R.]
BETWEEN
J.H. (ALBANIA)
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of December,
2019
1. Before the court is an Article 40 application and a judicial review, heard together. Given
that the State’s defence to the habeas corpus consists of the adverse immigration
decisions against the applicant, the appropriate procedure, and indeed that envisaged by
the Supreme Court in Re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19
[2000] 2 IR 360, is that the judicial review be determined first and then the Article 40, although
of course both can be addressed in the one judgment.
2. I have received helpful submissions from Mr. Shane Kiely B.L. for the applicant and Ms.
Fiona O’Sullivan B.L. for the respondents in each of the two proceedings. At the outset of
the hearing, Mr. Kiely applied for an adjournment and conditional release. The basis for
the adjournment was to enable him to appeal the decision refusing to accept the
applicant’s reapplication for international protection under s. 22 of the International
Protection Act 2015. But he does not need an adjournment to prosecute such an appeal;
and conditional release only arises if the case is adjourned, so neither application appears
appropriate.
Facts
3. The applicant entered the State illegally from Albania on 2nd October, 2014 and applied
for asylum. That application was refused at first instance by the Refugee Applications
Commissioner and on appeal by the Refugee Appeals Tribunal. On 7th December, 2016
he applied for subsidiary protection, and that was refused by the International Protection
Office and on appeal by the International Protection Appeals Tribunal. The latter decision
was challenged in judicial review proceedings, which I dismissed in J.H. (Albania) v.
International Protection Appeals Tribunal [2018] IEHC 752 [2018] 12 JIC 1408
(Unreported, High Court, 14th December, 2018). One of his main complaints in the
judicial review was that death certificates of his relatives were not obtainable from an
allegedly dysfunctional civil registration system in Albania and that the tribunal had acted
unlawfully in holding the lack of such death certificates against him.
Page 2 ⇓
4. The applicant was refused permission to remain in the State on review and the prohibition
on refoulement was considered in that context. A deportation order was made on 2nd
August, 2019. The applicant was arrested on foot of that order on 21st November, 2019
and judicial review papers were filed on 22nd October, 2019 in which certiorari of the
deportation order was sought along with an order requiring the IPAT and the Minister to
reconsider the applicant’s applications.
5. A s. 22 application was made on 5th December, 2019 and refused on 6th December,
2019, being the morning of the hearing of this application, and in the meantime the
applicant also, as noted above, applied for release under Article 40 of the Constitution.
Grounds of challenge
6. Seven grounds of challenge are advanced in the judicial review. Grounds A to C deal with
the risk to the applicant, but these were matters considered in the international protection
process. Furthermore, the applicant has not managed to keep his story straight about
deaths in the alleged blood feud. He conveniently produced four death certificates at the
last minute, despite the fact that, as appears from the previous judicial review, his main
complaint then was that such certificates were not obtainable, and indeed despite the fact
that the dates of death are inconsistent with the applicant’s account (see para. 8 of the
affidavit of Gráinne Keane). Also, perhaps conveniently, the place and cause of deaths
are, in each and every case, blank. Mr. Kiely is now saying that if the matter is adjourned
he will be looking to make yet another reapplication if he can get death certificates stating
the cause of death. Clearly the intention is that there cannot be allowed to be any end to
this process.
7. Grounds D to F constitute a claim that the applicant’s rights were not considered at all or
adequately. Ground F does not make sense and indeed contradicts para. 2 of the
applicant’s written submissions, but either way there is no basis to say that the
applicant’s rights were not considered. They were not considered in a manner favourable
to the applicant but that does not make the decisions unlawful.
8. Ground G relates to a lack of reasons but reasons were provided. There is just no basis
to challenge the immigration decisions here. For completeness the applicant says he
intends to appeal the s. 22 refusal, but such an appeal is not suspensive (see P.N.S.
(Cameroon) v. Minister for Justice and Equality [2018] IEHC 504). There is insufficient
material before the court to suggest any likelihood of success in any such appeal, or in
any hypothetical future s. 22 application, such that the court should exercise an
extraordinary jurisdiction to grant an injunction here notwithstanding the dismissal of the
judicial review and the lack of any other legal right to remain.
9. The context here, of course, is that the applicant has lost at all of the ten procedural steps
to date - the asylum first instance application, the appeal, the subsidiary protection first
instance application, the appeal, judicial review of the IPAT decision, the permission to
remain decision, the review of the permission to remain refusal, the making of a
deportation order, the application for permission to make a reapplication for international
Page 3 ⇓
protection and now judicial review of the deportation order. The system has got to be
allowed to work at some point; and in this case, that point has been arrived at.
10. The applicant’s written submissions say that the deportation order should be set aside so
that the Minister can consider the new evidence of his relatives’ death certificates.
Setting aside the deportation order is not a necessary precondition to the Minister
considering anything and indeed the Minister has already considered them and refused to
consent to the reapplication. The challenge to the deportation order and the other
immigration decisions is utterly without substance and must be dismissed; and the lawful
deportation order provides a complete answer to the Article 40 application.
Order
11. Both proceedings are dismissed.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC840.html
