The High Court quashed the Minister for Justice and Equality’s decision to make a deportation order against H, ruling that the Minister had applied the wrong standard of proof when assessing whether H had lived continuously in Ireland. The matter was remitted to the Minister for fresh consideration.
Mr Justice Max Barrett said on 9 December 2019 that factual matters relevant to a deportation decision under section 3 of the Immigration Act 1999 should be assessed on the balance of probabilities. The court held that the Minister’s examination of H’s file instead required him to establish his residence “with certainty”.
The case concerned the Minister’s decision of 24 May 2019. H sought an order of certiorari quashing it and an order directing that his permission-to-remain application be reconsidered. His grounds included that the Minister had imposed an unlawful standard of proof and had acted unreasonably in rejecting his explanation for Facebook photographs that appeared to show him outside Ireland.
The court found that the wording about certainty was not an isolated slip. It also considered references in correspondence to doubts about H’s residence that needed to be dispelled, and an examination-of-file conclusion that the doubts were too great for the benefit of the doubt to be applied. Taken together, those passages showed that a more stringent standard than the civil standard had been used.
The judge did not accept H’s separate argument that the Minister had acted irrationally by relying solely on the Facebook photographs. The entire file had been considered, the Minister was entitled to decide whether to accept H’s explanation, and providing an explanation did not necessarily mean the concern had been fully explained. The court said the wrong proof standard was the difficulty that required the decision to be set aside.
The judgment noted that H had been charged with burglary and theft and was on bail pending trial. The court said he remained presumed innocent and could be acquitted. It also stressed that quashing the deportation decision would not affect the criminal proceedings or any penalty if he were found guilty, and that a fresh consideration might reach the same outcome. The order required the immigration matter to be processed again using the correct standard of proof.