Irish High Court quashes deportation orders of EU citizen’s relatives having offered voluntary DNA test

The Irish High Court has quashed the deportation orders of the sister and niece of a British citizen. The Court held that the State erred in law and in fact in making the orders.

MH was widowed in Pakistan and moved to Ireland with her daughter to be with her UK citizen brother. Their EU treaty rights application was rejected. During a review of this decision, the applicants offered to undergo DNA testing at their own expense. The Court stated that it was “incomprehensible” that the State did not welcome the offer and await the outcome of the test in a situation where it would have favoured the applicants and where the State was dubious of the existence of their relationship.

The applicants were informed that the review had been unsuccessful and that a deportation process would follow. The applicants’ solicitors made submissions on their behalf, pursuant to s.3 Immigration Act 1999 and also concerning the applications that had been made pursuant to the free movement regulations. These submissions  were not responded to, save for a letter of acknowledgement. Following a pre-deportation review, the applicants were informed that deportation orders would be made.

Given the fact that the applicants received a letter of acknowledgement and the reviewer indicated numerous times that their submissions were being considered by the Minister, the Court held that the respondent’s deliberations as to whether to deport were inchoate and so the deportation orders must be quashed.

The Court held that it was “discourteous in the extreme” that a person facing possible deportation would be left “dangling” for eighteen months, not knowing whether they would be deported or not. The Court held that such a delay had an adverse effect on the applicants’ personal and family rights under Articles 40, 41 and 42A of the Constitution and Article 8 of the European Convention on Human Rights (ECHR).

The Court held that deporting the applicants would breach Article 8 ECHR because they would lose the financial and emotional support of their relative and their educational advancement would likely be frustrated. Further, the reviewer did not conduct a proper and updated examination of the issues surrounding the applicants’ right to private and family life and the reviewer implicitly questioned the existence of their relationship despite the offer to undergo DNA testing which the Court held was “entirely unreasonable”.

The Court concluded that: “(i) the respondent erred in law and perhaps also fact in making the decision to deport; (ii) the respondent’s deliberations in the deportation matter are inchoate; (iii) the decision to deport was unreasonable; and (iv) the respondent erred in law and perhaps also fact in failing to have proper regard to the provisions and consequences of s.3(6) of the Immigration Act 1999, Article 8 ECHR and s.50 of the International Protection Act 2015.” The Court also held that the respondent erred in issuing the deportation orders without due regard for the welfare a minor, in breach of Article 42A of the Constitution and Article 8 ECHR.

The Court stated that it would have expected that given what is now known due to the DNA test, some effort would have been made to re-visit the 2017 decision rejecting the applicants’ EU treaty rights application, “not because that is legally required but because it would be entirely proper in light of the changed circumstances”.  

Click here to read the full judgment in MH and SH v The Minister for Justice and Equality.




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