The High Court has quashed a deportation notification issued to an Egyptian man after finding that a clause referring to possible deportation in “very exceptional circumstances” exceeded the Minister for Justice’s powers under the Immigration Act 1999.
In a judgment delivered on 12 October 2023, Ms Justice Bolger also granted the man an extension of time to bring his judicial review case. She found that COVID-19 in his solicitor’s office had caused operational difficulties leading to a relatively short delay, and that the delay had not actively prejudiced the Minister.
The man, identified in the judgment as KA, arrived in Ireland in April 2019 and made an international protection application that he did not pursue. A letter dated 25 March 2022 notified him of the Minister’s proposal to deport him and set out three options. He challenged the option concerning voluntary departure, arguing that its wording left him unable to understand whether he could still face a deportation order after leaving Ireland.
The Minister argued that the clause simply provided information permitted by the Act and allowed for unforeseen circumstances. The Minister cited, as examples, a person returning to Ireland after leaving voluntarily, or a serving prisoner whose circumstances prevented immediate departure.
Justice Bolger rejected those examples as grounds for making an order based on the person’s earlier period of residence. She said a later return to Ireland could be considered under the statutory scheme at that time. She also found that a person in prison was not in a position to consider and arrange voluntary departure as the option required.
The judge held that a person who leaves voluntarily before the Minister decides whether to make a deportation order gives up the opportunity to make representations in that process. The person must therefore be able to make an informed choice among the options. The judgment said the Act did not give the Minister power to reserve a right to make an order in unspecified exceptional circumstances after voluntary departure.
Justice Bolger rejected the Minister’s argument that KA’s case relied on another person’s complaint, finding that his affidavit showed genuine concerns about the option and its effect on his decision. She also said the limited information about his right of residence in Italy did not justify refusing relief.
The court granted certiorari quashing the notice issued to KA by the 25 March 2022 letter. It did not make a final costs determination in this judgment. Its indicative view was that KA was entitled to costs, and the case was listed for a further mention on 26 October 2023 to hear submissions on costs and the scope of the final orders.