Member Login

No error in decisions refusing Albanian national leave to remain and ordering his deporation

By: James Cross BL

or click here to request site subscription to search and view all judgments

High Court refuses judicial review of the decisions refusing an Albanian national leave to remain and ordering his deportation, on the grounds that: there was no error in the assessment of his Article 8 rights as the requirement to establish exceptionality in the case of a non-settled migrant or person with a precarious residence for Article 8 rights to become engaged has not been disapplied; there was no failure to give reasons as it was obvious that permission was refused because the Respondent determined that the his personal circumstances did not outweigh the State’s interest in upholding the integrity of the international protection and immigration procedures of the State and protecting the economic well-being of the State; the decision refusing leave to remain was not unlawfully made because the decision was made by a person who was appointed as an IPO; and there was no error on the face of the record.

Asylum and immigration – Albanian national challenging the decisions refusing him permission to remain and to issue a deportation order against him – entered state and unaccompanied minor – assisted in making international permission application – granted access to the labour market - refused international protection – refused permission to remain - review of the refusal of permission to remain upheld the decision – deportation order issued - procedural right to have a proportionality assessment conducted in relation to Article 8 of the European Convention on Human Rights in the case of a non-settled migrant or a person with a precarious residence status, pursuant to the ECHR and/or the Constitution – Article 8 - Test in R (Razgar) v. Home Secretary [2004] 2 AC 368 - jurisprudence of the Irish Courts regarding the engagement of Article 8 – whether recent case law of the European Court of Human Rights alter the assessment required to be undertaken by decision makers – Court not of the view that the long standing settled jurisprudence of the Irish Courts is in conflict with the jurisprudence of the European Court of Human Rights - requirement to establish exceptionality in the case of a non-settled migrant or person with a precarious residence, for Article 8 rights to become engaged has not been disapplied - there is no necessity to conduct a proportionality assessment as otherwise such an assessment would be conducted without Article 8 having been established - granting the Applicant access to the labour market does not alter his residency status within this jurisdiction - he is a person with no legal status within the State – failure to give reasons - obvious that permission was refused because the Respondent determined that the Applicant’s personal circumstances did not outweigh the State’s interest in upholding the integrity of the international protection and immigration procedures of the State and protecting the economic well-being of the State – reasons not inadequate – argued that decision pursuant to s. 49 was unlawfully made on behalf of the Respondent by a person who also was appointed as an IPO – relevant statutory provisions - operation of the International Protection Office - Carltona Principle - test for excluding Carltona - the Carltona principle is assumed to apply unless there is an express statutory derogation from the principle or derogation arises by way of necessary implication from the terms of the statute provided that the devolved power does not conflict with the other duties imposed on the official in the discharge of his or her specific functions - Act does not raise any necessary implicit limitation on an IPO making s. 49 decisions – by exercising the Respondent’s devolved power pursuant to s. 49 of the 2015 Act, an IPO is not conflicted with the duties and functions he is mandated to execute in his role as an independent IPO - Carltona principle has not been displaced - not accept that there is a lack of clarity regarding the roles which each division perform or that there has been a blurring of the distinction provided for in the 2015 Act – error on the face of the record - no error appears on the face of the record – judicial review refused.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *