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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (I.) v. Minister for Justice Equality and Law Reform [2002] IEHC 34 (15 January 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/34.html Cite as: [2002] IEHC 34

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THE HIGH COURT

JUDICIAL REVIEW

No. 2001/270JR

BETWEEN

I S

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

JUDGEMENT of Mr. Justice T. C. Smyth delivered on the 15th day of January 2002

1.      The Applicant is an Ethnic Albanian from the province of Kosovo, Yugoslavia who was born on 25th May 1977 in Prischtina, Kosovo. He arrived in the State on 24th April 1996. He was at the date of interview on 4th March 1999 single and the only child of his parents. One of the principal grounds (if not the principal ground) upon which the Applicant seeks to quash certain orders and decisions of the Respondent is that of delay. Accordingly, it is of importance to consider this element of the case from the outset.

2.      When the Applicant arrived in Ireland he appears only to have had primary school education between the years of 1984-1989. Following unrest in his native country between 1989 and 1991 his father was arrested and ill-treated while in police custody. He himself appears to have been arrested for failure to carry identification papers. He based his claim for refugee status on police harassment, his ethnic background and his fear of military service. In April 1996 his father arranged for his departure from Kosovo, he apparently was driven to Macedonia where he was accommodated in a truck and brought to Ireland. At the time of Applicant’s arrival in Ireland it would be true to say that the State was not as well organised to deal with matters of asylum seekers as they are now.

3.      The annex to the UNHCR Position Paper on the Treatment of Refugees from Kosovo dated 20th November 1998 (hereinafter referred to as “the November 98 paper”) contained a summary of the evolution of the conflict in Kosovo from the end of February 1998 to 1st November 1998: this paper was specifically referred to and taken into account in March 1999 when the decision at first instance was made.

4.      When the Applicant arrived in Ireland it was against the background of the “the Von Armen letter” of 1985 as modified by (the Hope Hanlon letter “originally” of 13th December of 1995) which was invoked in Ireland by letter dated 13th March 1998, which set out the procedure which would be adopted for the determination of refugees status in Ireland. The Respondent’s Department issued the comprehensive procedures for processing of asylum claims in Ireland in July 1998.

5.      The decision at first instance was notified to the Applicant by letter dated 22nd March 1999. It is clear from a reading of the documentation that on arriving at this decision regard was had to the November 98 paper. I note in particular Part IV - Returned or Rejected Cases paragraph 9 (which, inter alia, states):-

“On 9th March 1998, UNHCR urged European Governments to stop sending rejected asylum seekers from Kosovo back to Yugoslavia on humanitarian grounds, until the situation in the province has stabilised.”

And Part V - Humanitarian Status - (paragraph 12) which states:-

“Given the fragility and unpredictability of developments on the ground, persons fleeing Kosovo who are not judged, against strict interpretation, to meet the refugee criteria of the 1951 Convention may, nevertheless, have genuine protection concerns as victims of conflict and violence. For this reason, they ought not to be returned at this time. In the interest of avoiding undue social and economic hardship, the office requests States who do not already do so as a matter of course to consider providing some form of humanitarian residence status in such cases as long as necessary to insure their protection.”

(Emphasis added)

6.      Unlike McCarthy J. in Flynn v An Post [1987] I.R. 68 at 82 I am unable to pronounce in the instance case -

“I am free to express my lack of conviction that the postponement of the enquiry was motivated by considerations of the Plaintiff’s welfare.”

At the conclusion of the first instance decision the Applicant was offered options to accept the decision and return home or appeal. The Applicant chose to appeal. The appeal was considered on 30th November 1999 and the negative outcome conveyed to the Applicant by letter dated 10th February 2000. Again the (alternatives) open to the Applicant were made clear to him. The Applicant chose to apply under Section 3 of the Illegal Immigrants Act 1999 for leave to remain on humanitarian grounds. This option was freely chosen and as the letter of application under Section 3 (dated 18th February 2000) makes clear:-

“This application for humanitarian leave is made without prejudice to any issue that may arise as Judicial Review of the appeal hearing.

A claim for humanitarian leave is made on the basis that were this refused asylum Applicant returned to Kosovo he would be likely to face further persecution and that is due to the instability of Kosovo at present and we enclose objective information in relation to Kosovo.”

(Emphasis added)

7.      Enclosed is a document entitled: ‘Kosovo Albanians in Asylum Countries; UNHCR recommendations as regards Returns’ which ‘A Synopsis and Concluding Comments on Timing of Returns’ which under the sub heading “timing of returns is important” (inter alia) states:-

“Caution is justifiably marked in the approach of important host countries towards the returns at this point, prompting them to prolong the legal stay of Kosovo Albanians in the current circumstances.UNHCR welcomes and encourages this development. Where temporary forms of protection are withdrawn, this should not lead to persons being involuntary returned in an indiscriminate way with undue haste.

(Emphasis added) [Document dated 1st October 1999]

8.      Notwithstanding this request to the Respondent if not expressed most certainly implied to festine lente the Applicant and his Solicitors (by letter dated 30th March 2001 - some 3 months after the hearing of the High Court in the P.B. and L. cases in which the same solicitors were involved) sought a response to the Section 3 application - pointing out that it was over a year since the Section 3 application had been made and about a month short of five years continuous residence of the Applicant within the State. The inference and importance of the latter fact is that the Applicant may have had some right or rights under the Irish Nationality and Citizenship Acts 1956 to 2001 (though in fact the Act 2001 was not passed into law until 5th June 2001) in the events a deportation order was signed and dated 10th April 2001 and the letter of notice thereof is dated 11th April 2001.

9.      On a detailed consideration of the documentation submitted to the Court and the detailed submissions made by counsel I am satisfied and find as a fact and as a matter of law that:-

(a) The Respondent, his servants or agents did not refuse and/or neglect to give reasons as required by Section (3)(3)(a) of the Immigration Act 1999, for his proposal dated 10th February 2000 to make a deportation order in respect of the Applicant. It is clear from the letter of 10th December 2000 read as a whole that the reason for the Minister’s decision to make a deportation order is as result of his decision that he was not satisfied that the Applicant had established a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, as defined by Section 2 of the Refugee Act 1996 accordingly, in my judgment the Applicant has not been deprived or denied of a real opportunity to make representations on his own behalf pursuant to Section 3(3)(a) the Immigration Act 1999.

(b) The Respondent, his servants or agents did not fail, refuse and/or neglect to give any adequate reasons as required by Section 3(3)(b)(ii) of the Immigration Act 1999 for his decision to make a deportation order in respect of the Applicant as notified by the Applicant by a letter dated the 11th April 2001. The contents of paragraph 3 of the letter of 11th April 2001 are identical to those given in the P.L. and B. cases and such reason have been considered by the adequate by the Supreme Court in it judgment 30th July 2001 (unreported).

(c) There is no evidence to support the assertion that the Applicants application ‘for leave to remain on humanitarian grounds’ was dealt with in a manner which fell short of the minimum requirements of natural and constitutional justice or that the Respondents, his servants or agents failed to consider and weigh appropriately representation made on behalf of the Applicant pursuant to Section 3 and in particular subsection 6 of that section.

(d) There can be no estoppel in the face of a statute. In particular the Respondent cannot by reason of having put in place his statutory scheme in place of the Hope Hanlon procedures be said to acknowledge that the latter procedures were inadequate. Furthermore the maintenance of the integrity of the asylum and immigration system is a matter of policy within the remit of the Respondent. In advancing this reason the Respondent did not act ultra vires.

(e) The Respondent did not take into account irrelevant considerations or fail to take into account relevant considerations in making the decisions challenged in these proceedings.

(f) The evidence adduced does not suggest much less support the assertion that the Respondent applied and or adopted a fixed policy in making the decision to make a deportation order

g) While appreciating the desirability of expeditious procedures and decisions referable to asylum/refugee status applications; precipitous responses are in most cases inappropriate. It is of importance that fair procedures consonant with constitutional and natural justice should apply and that same should be capable as circumstances permit to respond to each individual application while maintaining a consistency that respects the integrity of the asylum and immigration system.

10.      In the instant case the Applicant was always free to leave the State; so if he built up attachments or perceived himself as having any form of “legitimate expectation” he had no such entitlement at all as from receipt of the letter of the 10th February 2000 thereafter he remained in the State on a permissive basis only. Nothing in the documentation supports in any way view that the Respondent expressly or by implication created any such expectation either before or after 10th of February 2000.

11.      Throughout the period in review in the proceedings the Respondent was either being urged by the Applicant or on the Applicant’s behalf or in having due and proper regard to the information supplied by the UNHCR to defer any decision that might return the Applicant too soon to his country of origin. He therefore cannot resonably complain of the alleged delay. I am not at all satisfied that in any way the decision made in April 2001 just short of the period of five years herebefore referred to was to defeat any right or rights that the Applicant might otherwise have.

12.      Several cases in criminal law and disciplinary proceedings relied upon by the Applicant arising from the passage from Administrative Law in Ireland by Morgan and Hogan (3rd Edition 1998) on delay in the context of constitutional justice I found of interest but not of assistance. If there was delay - it was effectively invited, it permitted the Applicant residence in the State which he was free to depart from at any time, it did not create the prejudice asserted and even if subjectively seen as harsh by the Applicant was not unreasonable in all the circumstances of the case.

13.      The application for leave was effectively treated as the application for Judicial Review. The application is dismissed.