A recent judgement from Kearns J in the High Court (Sivsivade & Ors -v- Minister for Justice & Ors, 2012 IEHC 244, June 2012) upheld a Deportation Order which the applicants had argued was in breach of the Irish Constitution and of the European Convention on Human Rights because, like all Deportation Orders, it is an order of indefinite duration. Because members of the man’s family live in Ireland, the question was raised whether it might have been more proportionate to take the rights of the family unit into account and issue an Order of limited duration. This would presumably mean that the man could be deported from the state, but once a specified time had elapsed, he would be free to start from a clean slate and to apply for permission to return. Because Irish law does not presently allow for Deportation Orders of limited duration, the applicant submitted that the legislation providing for the orders (s 3 of the Immigration Act of 2010) is unconstitutional and in breach of European human rights laws.
As a case testing the constitutionality of section 3, this was a pretty weak test case. The applicant had lied to the state for years, using false passports and multiple aliases. Kearns J made it clear that “… far from conducting some sort of roving or theoretical inquiry into the general constitutional state of health of s.3 of the Act, the function of this Court is to evaluate the constitutional arguments by reference to and in the context of the specific facts of this individual case. That is not to ignore the fact that a declaration of unconstitutionality would not only affect the present case but would have implications for all deportation orders made to date by the Minister in reliance on this particular section.” All the same, the arguments presented by both sides do make for an interesting review of High Court and EU decisions about the duration of deportation and exclusion orders, and it certainly seems possible that a strong case might present a very serious threat to the viability of section 3 as it stands.
It is interesting to note that the last version of Ireland’s long-awaited immigration legislation (The Immigration, Residence & Protection Bill 2010) makes provision for exclusion orders of limited duration, as well as for deportation orders (which remain indefinite). Introducing the possibility of excluding someone from the state for a limited time rather than indefinitely might resolve the theoretical questions about whether section 3 could, in the right (or wrong) circumstances, be a disproportionate measure in breach of ECHR and Constitutional rights to family life. One presumes that the measure will be retained in Minister Shatter’s version of the Bill, which he has promised to publish before the end of this year.
Principal, Claire McCarthy Solicitor
