The Court of Appeal dismissed three appeals challenging the procedure under which the Minister for Justice considers written representations before deciding whether to make a deportation order. The court held that the applicants had no right to require a separate, advance decision on claims to remain in Ireland.
The judgment, delivered on 26 February 2016, concerned A.B., C.D. and E.F. A.B., a Pakistani national, had overstayed visitor permissions. She argued that requiring her to make representations during the deportation process, with the risk of an order if they failed, deterred her from advancing claims based on family and human rights. She sought a separate procedure to have those claims considered before a deportation proposal.
The High Court had rejected her challenge in October 2014, finding that section 3 of the Immigration Act 1999 provided a process for representations and consideration of her circumstances. A.B. appealed, arguing that the absence of a gap between rejection of representations and a deportation order unlawfully impeded her rights.
The Court of Appeal said the central issue was procedural. It did not decide whether A.B. had substantive constitutional or Convention rights to remain, or whether humanitarian grounds might prevent deportation. Those matters could be raised in representations under section 3(6), the court said. It also noted that C.D. and E.F. could seek revocation of their orders under section 3(11), among other possible applications.
The court found no entitlement to insist that the Minister consider a claim to remain separately and in advance of the statutory deportation process. It said a person whose permission had expired had no right to remain while pursuing a free-standing application. The court acknowledged that making representations under the deportation process might feel less comfortable, but concluded that the process did not inhibit applicants from putting forward their cases. A.B.’s appeal was dismissed.
C.D. and E.F., a married couple from China, had already made representations against deportation orders, which the Minister rejected. Their appeal raised the same core procedural issue. The court noted arguments that their case might be moot because they had completed the deportation process and had made a separate application concerning their daughter. It declined to decide mootness, saying that doing so would not affect A.B.’s appeal. It dismissed their appeals as well.
The court did not rule on the merits of any future applications concerning the couple’s children or changed circumstances. It said nothing turned in these appeals on a possible change in Chinese policy concerning the one-child policy.