The High Court has dismissed a Pakistani man’s constitutional challenge to his detention pending deportation, finding that his detention was lawful. The ruling concerned the legality of his arrest and detention, not a fresh challenge to the deportation order, which was unchallenged in these proceedings.
The man was detained after failing to leave Ireland by the deadline in a deportation order. His Article 40.4.2° application began on 22 June 2018. A bail order was made on 2 July, and the court later considered the application at hearings that concluded on 17 July. The judge ultimately dismissed it; the bail order was not the final outcome of the Article 40 proceedings.
The man argued that an application under the European Union (Free Movement of Persons) Regulations 2015 gave him a right to remain while it was considered. He had applied as a dependent family member of an EU citizen, his stepmother. The Minister refused the application on the basis that he had not established dependency. A review of that refusal was submitted on 16 July, but the judge held that seeking review did not itself create a right to remain. He was not satisfied that the man had established he was an actual qualifying family member entitled to rely on the regulations’ right to remain pending a decision.
The judge said the man was subject to a deportation order and had failed to leave by the specified date. He was therefore liable to arrest and detention under the Immigration Act 1999, making the detention “prima facie lawful”. The applicant’s lawyers raised grounds intended to challenge that conclusion, including an argument that he should have been dealt with under a removal order procedure. The judge rejected that argument, finding that the man had not established entitlement to rights under the EU regulations and was not within the category covered by that procedure.
The judgment also addressed the limits on challenging immigration decisions through Article 40 proceedings. It held that an unchallenged deportation order could not be indirectly contested in this habeas corpus application. The judge said the relevant time limits for judicial review applied, including where EU law rights were relied on.
The Minister had separately revoked the father’s residence card after finding that his marriage to the EU citizen was one of convenience. The father intended to seek review, and the son denied that the marriage was one of convenience. The judge said those issues did not need to be decided to resolve the detention application. He concluded that the man was lawfully detained and dismissed the application.