The High Court has quashed a deportation order against a Brazilian citizen after finding that he was not told the Minister had resumed the process following a pause for criminal proceedings.
In a judgment delivered on 10 November 2020, Ms Justice Tara Burns found that the applicant had been denied an opportunity to use the options available to him under section 3 of the Immigration Act 1999. The court also awarded him his costs.
The applicant entered Ireland as a student in April 2015 and held student permission until August 2016. In May 2017, after that permission had expired, his solicitor asked the Minister for permission to remain while he faced a criminal charge. He was on bail and, according to the judgment, could not leave Ireland under his bail conditions.
The Minister proposed deportation in October 2017 and gave the applicant 15 working days to make written representations, consent to a deportation order, or seek voluntary return. His solicitor said he could not choose the voluntary departure or consent options while the bail conditions applied, and asked for the proposal to be withdrawn. The Minister refused to withdraw it, but said the department would take no further steps under section 3 until the criminal proceedings were resolved.
A nolle prosequi was entered in the criminal case in May 2019. The applicant did not notify the Minister of that outcome. He applied for voluntary return to Brazil in June 2019, but the International Organisation for Migration told the immigration service in September that he had stopped engaging with the application.
On 9 September 2019, officials recommended deportation without prior notice to the applicant or his solicitor. The judgment records that the file assessment said the Minister did not know the outcome of the criminal case. A deportation order was made on 18 October and notified to the applicant’s solicitor in late November.
The applicant’s solicitor then told the Minister that the applicant had left Ireland and was living in Brazil from 13 July 2019, and asked that the order be rescinded. The respondent disputed whether the passport copy supplied adequately showed that he had left the State.
The applicant argued that it was unfair to issue the order without first telling him the paused process was being restarted. The Minister argued the order was lawful and that the applicant had been responsible for notifying the department of his departure.
The judge accepted that the applicant should have told the Minister about both the end of the criminal proceedings and his departure. But she held that, once the process had been put on hold, the Minister had to notify him before reactivating it. That notice would have allowed him to exercise the statutory options.
The court quashed the deportation order as unfair in the circumstances. It also found that the judicial review proceedings were not premature and ordered the respondent to pay the applicant’s costs. The judgment records the passport documentation dispute but does not decide it as a separate issue.