The High Court has extended the time for a Chinese man detained in Cloverhill Prison to bring judicial review proceedings challenging a deportation order and a related immigration notice. The decision allows the challenge to proceed; it does not determine whether the order was valid or resolve the separate inquiry into the legality of his detention.
Mr Justice Mac Eochaidh delivered the ruling on 25 November 2016, at an interlocutory stage when the evidence had not been tested. The judicial review was being heard alongside the man’s constitutional habeas corpus proceedings. The issue decided in this judgment was his application to extend the statutory time limit for bringing the judicial review.
The order was made on 23 December 2013. The Department sent it and an accompanying notice to the last address the man had given officials, in Monaghan, in February 2016. The post was returned marked “unknown”. The man said he had moved to Kildare and did not learn of the order until about 6 September 2016, when officials wrote to him there. He sent a photograph of that letter to his agents, who translated it. He sought revocation of the order within days.
The Minister argued that legislation deemed the documents served three days after they were sent, and that the man should have brought proceedings within 28 days. The judge accepted that the State was entitled to send them to the last notified address and found that the man was responsible for not updating officials after moving. He therefore treated him as notified in February 2016 for the time limit.
However, the judge said that did not prevent an extension. Factors in the man’s favour included that he had no actual knowledge of the order until September, the Department had waited about two years before sending it, and he had acted promptly after learning of it. The judge also noted that the man spoke and read little English, was in custody, and had earlier supplied officials with information including his Kildare address and place of work.
The proposed challenge argued that the deportation order did not itself specify the date by which he had to leave, although the legislation required a departure period to be specified in the order. It also raised questions about the accompanying notice and the regulations prescribing the order’s form. The judge considered these points arguable and said the issue could merit judicial scrutiny, while noting that earlier case law might assist the Minister.
The court extended time for the judicial review proceedings. It made no final ruling on those legal challenges in this judgment, and the habeas corpus question remained separate.