The Court of Appeal has refused to order the release of a Pakistani national detained pending deportation, finding that his application for permitted family member status did not give him a right to remain in Ireland while it was considered.
The appeal concerned the legality of his continuing detention under section 5 of the Immigration Act 1999. The man challenged the High Court’s 7 February 2017 refusal to direct his release under Article 40.4.2 of the Constitution. The Court of Appeal judgment was delivered by Mr Justice Gerard Hogan on 27 February 2017.
A deportation order had been made against him in September 2011, after his refugee and subsidiary protection applications were refused and he was refused leave to remain. He was arrested on 9 January 2017 and detained at Cloverhill Prison. The validity of the arrest was not challenged in these proceedings.
The issue on appeal was whether authorities had a settled intention to deport him within the statutory eight-week detention period. The man had applied to the Minister in October 2016 to be treated as a permitted family member of a UK national, whom he described as his sister-in-law. He claimed to have been in a durable relationship with her for more than two years. His argument was that he could not be deported until the Minister decided the application, making his continued detention unlawful.
The court examined the European Communities (Free Movement of Persons) Regulations 2015. It held that a person only becomes a permitted family member if the Minister makes a positive decision. The regulations allow qualifying and permitted family members to remain while awaiting a decision on a residence card, but the court found no equivalent right for someone who has merely applied for permitted family member status. It also found no such entitlement in the relevant EU directive.
The court concluded that the application alone did not prevent the deportation process from continuing and did not undermine the authorities’ settled intention to deport within the statutory period. It therefore held that the man remained in lawful custody and refused to order his release.
The respondent had also argued that the challenge should have been brought by judicial review as an impermissible collateral attack on the deportation order. The court said it was not necessary to decide that alternative submission and left the issue for formal determination in any subsequent proceedings.