The Supreme Court has dismissed appeals by Romanian and Czech nationals who argued that they should be allowed to remain in Ireland while seeking permission to establish businesses under Europe Agreements. The Court held that the agreements did not give them a right to stay for that purpose after their asylum applications ended and deportation orders were made.
The appeals concerned Georghe Adrian Goncescu; Vasile and Florina Sava; and members of the Hrickova family. In a judgment delivered by Justice Murray on 30 July 2003, the Court considered three legal questions certified by the High Court. It answered the first in the affirmative and the second and third in the negative: the State could require applications for establishment to be made from outside Ireland, and the administrative arrangements had not nullified or impaired the applicants’ benefits under the agreements.
The applicants relied on provisions allowing nationals of Romania and the Czech Republic to pursue economic activity as self-employed people. They argued that their presence in Ireland was lawful while asylum or humanitarian leave matters were being dealt with, and that requiring them to return home to apply was discriminatory or excessively restrictive.
The Court distinguished temporary permission to remain while an asylum claim was examined from permission to reside in Ireland as an immigrant. It held that once the asylum applications had been refused, or in the Hrickova family’s case transferred to Germany, the applicants’ limited authority to remain had ended. Their physical presence while deportation procedures were pending did not give them a right to reside. The Court said the Europe Agreements provided no independent right to enter or stay in Ireland to make an establishment application.
The judgment accepted that a system of prior control could require applicants to apply from their home country. It said the system allowed authorities to assess whether a proposed business was genuine and viable, and whether the applicant intended to be self-employed rather than enter paid employment or rely on public funds. The applicants remained entitled to submit applications from outside Ireland, which would be assessed on their merits.
The Court also rejected an alternative argument that the applicants’ correspondence should have been treated as applications for leave to enter. It found that none had supplied material capable of showing, even on a preliminary basis, that the substantive establishment requirements were met. Goncescu’s work history included work after his permit expired; the Savas’ letters referred to offers of employment; and the Hrickova correspondence asserted that Mr Hrickova could establish a bricklaying business without setting out a business plan or supporting evidence.
The Hrickova family separately challenged the deportation orders connected with transferring their asylum claim to Germany. The Court dismissed that part of the appeal too. It held that they had notice of the possible transfer and opportunities to make submissions and appeal, and that the Minister’s role after the transfer determination and appeal was to arrange removal. The Court found no basis in the alleged translation deficiencies to invalidate the order.