A man from the Democratic Republic of Congo has lost his Supreme Court appeal over a decision he has no legal right to remain in Ireland.
His partner and two children remain legally here on foot of a residency permit granted in 2016 after they had been in the asylum application system for five years.
Aged in his 40s, the man has a complex immigration history involving asylum applications in the Netherlands, South Africa and Ireland during which he made a number of false claims.
The High Court described him as having engaged in a "massive abuse" of the immigration system here and in the Netherlands.
This week, the five-judge Supreme Court rejected his appeal over the High Court’s dismissal of his case.
It also dismissed a separate appeal brought on similar grounds by a Cameroon man but a deportation order in that case has since been withdrawn.
The unanimous judgment, delivered by Mr Justice William McKechnie, concerned the legal position in the State of persons pending a decision by the Minister for Justice on their requests to re-enter the international protection process.
The court had to consider provisions of the International Protection Act 2015 and a 2005 EC Directive on Minimum Standards on Procedures in Member States for the Granting and Withdrawal of Refugee Status.
Mr Justice McKechnie concluded the right to remain in the State ceases once the International Protection Office (IPO) or the International Protection Appeals Tribunal (IPAT) has made an adverse recommendation under section 22.5 of the 2015 Act.
The Minister’s role was “purely to implement” the determination of the IPO or IPAT, he held.
He ruled, while the High Court has jurisdiction to dismiss an application for judicial review under the 2015 Act for abusive conduct by an applicant, that must be exercised “sparingly” and only where that conduct can be considered “serious and significant in the context of the system as a whole”.
Given the clear desirability of reaching a conclusion on the facts and the law, particularly where the asserted right is EU derived, a court should be “quite reluctant” to exercise this power unless quite satisfied it should do so.
The man’s immigration history from 2005 included unsuccessful efforts to get asylum in the Netherlands. He first came here in 2011, failed to get asylum and returned to the Netherlands which refused him entry.
After Ireland agreed to a “take-back” request from the Dutch authorities, he sought subsidiary protection here in 2015 which was refused. A deportation order was made in January 2017, he applied to revoke that and also sought to be readmitted to the protection process, for which the Minister’s consent was required under section 22.
In October 2017, the IPO recommended to the Minister his request be denied. He did not appeal that recommendation to IPAT.
After the Minister refused to undertake not to deport him pending a decision by the Minister whether or not to grant consent to him to re-enter the asylum process, he sought judicial review.
The High Court's Mr Justice Richard Humphreys refused the reliefs sought. He added, even if he had found the man had a right to remain under the 2005 directive, he would have refused the reliefs because the man engaged in a "massive abuse" of the immigration system here and in the Netherlands.
A core issue in the Supreme Court appeal was whether he could be removed from the State before he received a decision from the Minister under section 22 of the 2015 Act.
Mr Justice McKechnie said the Minister, by virtue of section 22, is obliged to give effect to the “recommendations” of the IPO and the IPAT unless he considers they endanger State security.
Under the 2005 directive, the man’s right to remain lasts until a decision is made by the designated body – in this case the IPO – in accordance with the specified procedure, he said. The Minister’s involvement did not confer upon him any power or authority to make substantive decisions which affect applicants.
