High Court dismisses habeas corpus application where detention is lawful despite alleged fraudulent marriage claims.

[2018] IEHC 442

THE HIGH COURT

[2018 No. 787 S.S.]

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

S.S. (PAKISTAN)

APPLICANT

AND

THE GOVERNOR OF THE MIDLANDS PRISON

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of July, 2018

1. The applicant is a citizen of Pakistan. His father claims to have been present in the State unlawfully between 2005 and 2009,

although this is not recorded on the Minister’s records. All-too-conveniently, during this period of unrecorded alleged presence, he

claims to have met a Romanian citizen here in 2007. The applicant’s father had a U.K. visa issued in Abu Dhabi between 1st August,

2013 and 1st February, 2014. The applicant also had a U.K. visa valid between 1st January, 2012 and 24th March, 2013.

2. The applicant arrived in the State and applied for asylum on 27th June, 2013. On 22nd August, 2013 he was informed that the U.K.

was the State responsible for his application. On 6th September, 2013 he was informed of the requirement to present to GNIB to

permit his transfer to the U.K. He did not so present and was classified as an evader. He claims he did not get this notice but that

was in circumstances where he wrongfully failed to give notice of his change of address. In such circumstances, service on his last

notified address is good and valid in law.

3. On 13th March, 2014 the applicant’s father came, or returned, depending on whether one wishes to accept his account, to Ireland.

On 15th March, 2014 the father applied for asylum. On 1st August, 2014, that is slightly over four months after re-entering or

entering the State at all, the father gave notice of intention to marry the alleged EU national partner. The applicant’s father’s asylum

claim was deemed withdrawn on 19th August, 2014. On 10th November, 2014 the father “married” an EU national, a Ms. N.M. At the

time he was illegally present here and married only some eight months after re-entering the State. She was born in 1972 so was 41 at

the time, he was born in 1961 and was 53. No one identifiably associated with the wife was listed as a witness on the marriage

certificate.

4. The applicant’s claim for asylum was deemed withdrawn on 25th February, 2015 as he failed to attend the Refugee Application

Commissioner for interview. On 5th March, 2015, the applicant was formally refused refugee status. On 1st July, 2015, the father was

granted a residence card based on his “marriage” to a Romanian national.

5. A deportation order was made against the applicant on 2nd July, 2015. That was notified on 5th August, 2015 to the GNIB rather

than directly to the applicant because the latter had unlawfully left Balseskin reception centre without a forwarding address. On 29th

April, 2016, the father made an application to permit his teenage children to come to the State. On 14th July, 2017, the father, after

a visit abroad, came back through Dublin airport. According to the Minister’s letter of 20th April, 2018, addressed to him, “you

hesitated for a considerable period of time before stating that your wife is Polish”. The “wife” was telephoned and said she was not

expecting anyone arriving through Dublin airport. The applicant’s father could not explain why the “wife” was not aware of his

movements. After being allowed to proceed, an unidentified male repeatedly phoned immigration authorities to claim that Ms. N.M. did

not understand the question that had been put. Conveniently, the applicant’s father’s solicitors now claim that he has memory issues,

although the G.P.’s letter in that regard is extremely vague.

6. On 9th January, 2018, notice was served on the applicant of the deportation order with a direction to leave the State by 9th

February, 2018 and failing that to present to the GNIB on 14th February, 2018. He failed to leave the State but did so present. On

16th January, 2018 the visa application for the applicant’s brothers was refused. An appeal is pending. On 30th January, 2018 the

applicant made an application under reg. 7(1) of the European Union (Free Movement of Persons) Regulations 2015 (S.I. 548 of 2015)

as a qualifying family member on the basis that he was dependent on an EU citizen, being his step-mother, and her husband, his

father. On 14th February, 2018 he presented to GNIB and was given further directions. On 20th April, 2018 the father was written to,

pointing out serious anomalies in his story and inviting submissions as to why his permission should not be revoked. Some submissions

were made.

7. On 20th June, 2018, the applicant was arrested at an address in Portlaoise for the purposes of deportation. On 27th June, 2018, in

a letter misdated as 21st June, 2018, the Minister refused the applicant’s application under reg. 7 of the 2015 regulations on the basis

that he was not a qualifying family member because he was not dependent on the EU citizen. It was noted that documents were

submitted to the effect that the EU national’s place of employment was Ballymount but in the EU 1 Form it was stated that it was

Duleek. A P60 form for Ms. N.M. for 2014 was submitted, yet she had no employment record for 2014. Her limited earnings did not

support the contention that the alleged employment was genuine given the place of the alleged employment. The Minister was not

satisfied she was exercising EU law rights.

8. As regards the claim that the father and the EU citizen were living together in Portlaoise, the landlord was unaware of her living in

the property. That letter does not state that the marriage was one of convenience because that decision had not, as of that point,

been made. However, on 27th June, 2018, the applicant’s father’s residence card was revoked on the basis that the marriage was one

of convenience. The father has indicated an intention to apply for review. On 28th June, 2018, the applicant’s solicitors wrote

indicating that a review of the residence refusal would be sought. On 16th July, 2018, the applicant submitted the application for

review of the refusal of his residence application. An application for review by a person who does not have an actual EU law

entitlement does not in itself confer any right to remain, although that is often afforded in practice. In any event, the review is not

hugely relevant to the Article 40 application because the focus in the proceedings is on the legality of the original arrest.

9. I have received helpful submissions from Ms. Sara Moorhead S.C. (with Ms. Emily Farrell B.L.) for the respondent, who of course

carries the burden of proof, and from Ms. Rosario Boyle S.C. (with Mr. Aengus Ó Corráin B.L.) for the applicant.

Procedural history

10. The present application for the applicant’s release under Article 40.4.2° of the Constitution commenced on 22nd June, 2018

before Keane J., who refused the ex parte application for an inquiry into the legality of his detention. On the following Monday 25th

June, 2018 the Court of Appeal allowed an appeal from that decision [Record No. 2018/267]. An ex tempore judgment of Hogan J.

was delivered, which introduced a number of points into the case that, according to counsel for the applicant, had not hitherto been

raised by her or featured in argument. The matter was then remitted to the President of the High Court and came before him on 26th

June, 2018. It was transferred to me on the same date and I listed it for hearing on 29th June, 2018. On that date it came before

Eagar J. who adjourned it to Monday 2nd July, 2018 and on the latter date stated that he was minded, although not on an application

by the State, to convert the application into a judicial review. He also indicated that he was minded to give the applicant bail,

although again I am informed by counsel that that did arise out of any submissions made by the parties.

11. The bail order made on 2nd July, 2018, states on its face that it was by consent, although from what I am told that does not in

fact quite reflect the parties’ positions. The State informs me that prior to hearing from the parties the learned judge indicated an

intention to grant bail and that the terms of that bail were then agreed as opposed to the concept or principle of the order overall.

12. The matter was then listed for hearing on Friday 6th July, 2018. The applicant indicated that he was unhappy about the matter

being converted to a judicial review and after delivery of written submissions by him in that regard, the parties informed Eagar J. that

there was no objection to the matter remaining as an Article 40. The learned judge then remitted the matter back to the Asylum list

on 9th July, 2018, and it was listed for hearing on 10th July, 2018, a hearing which then concluded following further submissions on

17th July, 2018.

Prima facie lawfulness of the detention

13. The respondent has produced a certificate seeking to justify the detention, dated 26th June, 2018. That includes a document

signed by the Assistant Governor of the Midlands Prison, in which it states “I hold the applicant in custody in prison pursuant to

warrant of detention dated the.” (sic). That warrant is exhibited. Certainly that erroneous drafting is sub-optimal but no point was in

fact taken by the applicant in relation to that typographical error. The warrant of detention that is exhibited and signed by Detective

Garda Damien Delaney states that the applicant has been arrested and is to be detained pursuant to s. 5 of the Immigration Act 1999

and the Immigration Act 1999 (Deportation) Regulations 2005 (S.I. 55 of 2005) because he failed to leave the State within the time

specified in the deportation order.

14. A number of facts are clear. The applicant is subject to a deportation order, an order that as it happens is unchallenged. The

applicant’s date to leave the State, 9th February, 2018, was specified in the order indirectly by reference to the accompanying

notice: see M.A.K. v. Minister for Justice and Equality [2017] IEHC 465 (Unreported, O'Regan J., 8th May, 2017), K. v. Minister for

Justice and Equality [2018] IESC 18 (Unreported, Supreme Court, 13th March, 2018). The applicant failed to leave the State by the

time so specified and the applicant is therefore liable to arrest and detention under s. 5 of the 1999 Act. His detention is therefore

prima facie lawful. Ms. Boyle has raised a number of grounds as to why that certificate demonstrating prima facie lawfulness can be

shown not to be an answer to the application, and I will now address those.

Alleged right to remain under the 2015 regulations

15. The European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) provides at reg. 7(1) that: “A

family member who is not a national of a Member State (a) may, within 3 months of the relevant date, apply to the Minister for a

residence card, and (b) shall, where an application under paragraph (a) has not been made within the period specified in that

paragraph, before the expiry of 4 months after the relevant date, apply to the Minister for a residence card. (2) In paragraph (1),

the “relevant date” means (a) in the case of a qualifying family member, the date on which he or she (i) entered the State as a

qualifying family member, or (ii) having already been in the State, became a qualifying family member …”. Also relevant is sub para.

(6): “An applicant under paragraph (1) may remain in the State pending a decision on the application”.

The applicant has not established that he is actually a qualifying family member so thus has not established an entitlement

to rights under regs. 7(1) or (6)

16. Regulation 7(1) establishes that an application can only be made by a “family member”. That means either a permitted or a

qualifying family member. It is agreed that the applicant is not a permitted family member. Thus he can only be a qualifying family

member, but to be a qualifying family member under reg. 3(5) in pertinent part you have to be a direct descendant who is “a

dependent of the Union citizen, or of his or her spouse or civil partner”. This reflects directive 2004/58/EC art. 2.2(c). This applicant

has not established to the Minister’s satisfaction that he is a dependent. Therefore, he is not to be treated as a qualifying family

member and is therefore not entitled to rights under reg. 7(1) or (6) or the corresponding provisions of the directive, in particular art.

2.2 or 10. Merely asserting dependency does not create rights under art. 7(6). As it was put in C.A. v. Governor of Cloverhill Prison

[2017] IECA 46 (Unreported, Court of Appeal, 27th February, 2017) per Hogan J., one has to be an “actual” qualifying or permitted

family member to have rights under art. 7, not simply an applicant. In that sense I should clarify that the words “an applicant under

paragraph (1)” in reg. 7(6) mean a person who is entitled to apply under that paragraph, that is a dependent “family member”, not

simply any random person who happens to wander along and make an application, irrespective of whether they are a family member in

a dependency situation or not.

17. To this extent, dependency is possibly different from being a spouse in the sense that absent there being a question of a marriage

of convenience, spousal status constitutes the basis of an application in and of itself, whereas dependency has to be established by

the applicant rather than merely asserted before any right to remain could arise: see also Case C-1/05 Yunying Jia v.

Migrationsverket (CJEU, 9th January, 2007) at para. 42. The fact that the refusal of the applicant’s application is now to be put

under review does not change that position.

The applicant’s claim that he should be proceeded with by a removal order rather than deportation order is unfounded

18. The fundamental problem for the applicant here is that he has not established that he is entitled to any rights under the directive;

therefore this point does not arise. The power to make a removal order under reg. 20 of the 2015 regulations is limited to a person to

whom reg. 3(1) of the 2015 regulations applies. This applicant is not such a person, so is not subject to the removal order procedure.

19. More generally, this point was not part of the case at all until introduced by Hogan J. in the Court of Appeal. Possibly what he had

in mind was his decision as a High Court judge in Igunma v. Governor of Wheatfield Prison [2014] IEHC 218 (Unreported, High Court,

29th April, 2014). However, I have to respectfully take the view that that decision is incompatible with the Supreme Court decision in

Rachki v. Governor of Cloverhill (Unreported, Supreme Court, 5th December, 2011) ex tempore (Fennelly J.), a matter I have dealt

with at length in K.P. v. Minister for Justice and Equality [2017] IEHC 95 [2017] 2 JIC 2006 (Unreported, High Court, 20th February,

2017) and M.A. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 95 [2018] 1 JIC 3011 (Unreported, High Court, 30th

January, 2018) (see also M.K.F.S. v. Minister for Justice and Equality [2018] IEHC 103 and [2018] IEHC 222 [2018] 4 JIC 1602

(Unreported, High Court, 16th April, 2018)), so there is no particular advantage in repeating those points here. To summarise,

however, the fundamental flaw in the logic of Igunma is that it treats time limits as irrelevant merely because an EU law issue is

raised. The Supreme Court in Rachki referred to the principle of national procedural autonomy. Time limits apply to both national and

EU law. A remedy subject to such time limits is both equivalent and effective. A procedure does not breach the principle of

effectiveness merely because a particular applicant loses their case. Nor does that breach “the very substance” of an EU law right.

That is to fundamentally misunderstand EU law. A procedure that allows applicants a reasonable opportunity to assert EU law rights,

even if a particular applicant loses the ability to enforce those rights by not availing of the opportunity in a timely manner, is

compliant with the principle of effectiveness.

20. The applicant interprets Rachki as a case about a person who did not apply for a review of a residence card refusal. That is not

the ratio of the case. It is about the applicant’s failure to seek, in a timely manner, judicial review of the deportation order that

underlay the detention impugned in the Article 40 proceedings, and the consequence that such failure precludes raising a collateral

challenge in the Article 40 context. This point was simply by-passed in Igunma. It is not specifically addressed in Case C-127/08

Metock v. Minister for Justice and Equality (25th July, 2008) either.

21. There may or may not be some sort of a point in relation to removal orders versus deportation orders in relation to some category

of applicants - that remains to be seen - but however interesting such a point may be, it does not apply to this applicant. Here the

marriage to the EU national took place in 2014; the deportation order was 2015. The point was, therefore, there from the outset. The

applicant did not make the point to the Minister. Even if, which I do not accept, there was some jurisdictional infirmity in the

deportation order, the time for challenging that order expired 28 days after its notification. The applicant cannot simply wander along

years later and assert that the deportation order is invalid by waving a European flag.

22. Separately from the foregoing, under the decision of the Supreme Court In Re Illegal Immigrants (Trafficking) Bill 1999 [2000]

IESC 19 [2000] 2 I.R. 360, s. 5 of the 2000 Act is procedurally exclusive. Thus an unchallenged deportation order is a complete

answer to any Article 40 proceedings based on the deportation. Such a deportation order cannot be indirectly challenged under

habeas corpus: see my recent decision in Gayle v. Governor of the Dóchas Centre [2017] IEHC 718 [2017] 10 JIC 2710 (Unreported,

High Court, 27th October, 2017). I do not accept that this point is left open in the Court of Appeal judgment in C.A. at paras. 30 to

31. That must be read as dealing with a separate situation where the unlawfulness in the detention is entirely separate from the

deportation order, for example by relating to a lack of a settled intent to deport, and thus where the Article 40 action does not

amount to an indirect challenge to the deportation order. Where the unlawfulness of the deportation order is a factor and where the

habeas corpus application amounts to an indirect challenge to a decision covered by s. 5 such a point simply cannot be raised.

Section 5 of the 2000 Act means that an indirect challenge to a decision covered by the section cannot be launched in any other

form of proceedings apart from judicial review under that section: see the Supreme Court decision in Nawaz v. Minister for Justice,

Equality and Law Reform [2012] IESC 58 [2013] 1 I.R. 142 and the recent decision of Hogan J. in X.X. v. Minister for Justice and

Equality [2018] IECA 124 (Unreported, Court of Appeal, 4th May, 2018).

23. To allow a deportation order to be challenged indirectly in an Article 40 context would not only unleash procedural chaos but

would give a windfall benefit to people who fail to act in a timely manner. After all, one cannot be arrested on foot of a deportation

order unless one has first failed to challenge that order in within statutory time limits, or has unsuccessfully done so.

24. Thus, to clarify by way of postscript summary, the application of domestic time limits to challenges based on the acquisition of EU

law rights means that if the EU law rights were acquired before a deportation order or other decision covered by s. 5 of the Illegal

Immigrations (Trafficking) Act 2000, the normal time limit of 28 days applies, or 3 months if there is no s. 5 context. If the EU law

rights were acquired after a deportation order or other decision, then the applicant must act within 28 days from acquiring those

rights if the proceedings impugn the effectiveness of a s. 5 decision, but in any event it is subject to the rule that “[a]n application

for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose”

(O. 84 r. 21(1)). An applicant cannot disregard the rules of court and present themselves to the High Court years later seeking to

quash a decision merely because of claiming to have, at some long-ago point in time, acquired EU rights. To disregard judicial review

time limits merely because an applicant raises an EU law point, or to allow a collateral challenge via Article 40 to a decision subject to

the procedural exclusivity of s. 5 of the Illegal Immigrants (Trafficking) Act 2000, or both, would be profoundly misguided for a number

of separate but interlocking reasons:

(i). It would be to drive a coach and four through the statutory limitation periods contrary to law and to the separation of

powers.

(ii). It would be a fundamental misunderstanding of EU law and in particular of the principle of national procedural

autonomy.

(iii). Such an approach would contradict the binding Supreme Court judgments in Rachki (distinguished in Igunma on a

basis that simply disintegrates on examination, as explained in K.P. and M.A.) and in the Trafficking Bill case.

(iv). Allowing such belated litigation would put a premium on failure to challenge a decision in a lawful and timely manner

by allowing afterthought challenges in a habeas corpus context.

(v). Such an approach would reduce law to a whimsical, Alice-in-Wonderland situation where a limitation period just

means what a particular applicant chooses it to mean, neither more nor less. A proposed judicial review regarding alleged

EU rights could simply be kept in the applicant’s vest pocket for any length of time, to be detonated at will.

(vi). And in the particular context under discussion here, an entitlement to impugn deportation orders out of time and

without reference to s. 5 of the 2000 Act would hamstring an orderly and effective approach to combating the abusive

and cynical bogus marriage industry. Anyone who thinks that marriages of convenience are a victimless wrong and a

private matter between consenting adults is probably either painfully naïve, sadly ill-informed, or predisposed to favour

interesting theory over an unblinking look at unpleasant reality. The bogus marriage industry has perpetrated significant

abuse including physical and sexual abuse upon its victims including vulnerable women. Even without egregious abuse,

given the personal consequences and downstream pressure and complication involved it is hard to see how consent to

such a bogus marriage, even if it existed in a given case, could be said to be fully informed. How does one think that such

women are “persuaded” to stick to the lie over a period of years? Honeyed words alone? The applicant here of course

denies that the relevant marriage is one of convenience; although the Minister has formally found otherwise, subject to

review.

(vii). Above all, such an approach would unleash unending procedural mayhem upon the Irish immigration system and its

practical enforcement. A court would need to think long and hard before setting in motion the sort of consequences that

would flow from either disregarding time limits or allowing collateral challenges to decisions covered by s. 5.

Order

25. I should note finally that the State submitted both that the decision that the marriage was one of convenience was declaratory

but also that it was not hugely relevant to the detention here. I have some difficulty in following that submission because at one

level, if the decision that the marriage is one of convenience is declaratory, then the applicant never had any legitimate rights under

reg. 7 in the first place and thus it would not be appropriate for the court to order his release on the basis of an alleged breach of

reg. 7 even if, counter-factually, such a breach was otherwise established. However, as the respondent does not seem to be making

this point it does not appear to be necessary to decide it. Also, the respondent did not appear to be making any argument that relief

should be refused on a discretionary basis. Kevin Costello’s The Law of Habeas Corpus in Ireland (Four Courts Press, 2008) at pp. 100

– 104 suggests there are some circumstances where this could be done, such as an abuse of process, and the issue would certainly

arise as to whether bringing legal proceedings which are ultimately based on what has been found to be a fraudulent marriage is such

a case. However, given the stance of the parties I do not need to decide this issue either. In terms of the matters that do fall for for

decision here, for the reasons set out above, I am satisfied that the applicant is in lawful detention so I shall dismiss the application.

Postscript

26. Since delivery of the foregoing judgment in unapproved form, but before approving it, my attention was drawn to the judgment of

Clarke J. (as he then was) in Shell E & P Ireland Ltd. v. McGrath [2013] IESC 1 [2013] 1 I.R. 147 (which coincidentally was discussed

and applied in an EU law context very shortly after the foregoing judgment in Express Bus Ltd. v. National Transport Authority [2018]

IECA 236). While the approach taken in Shell was not opened to me at the hearing, I should record my view that it seems highly

consistent with the conclusions I have reached above.