Drug dealer loses deportation battle
Mr Justice Richard Humphreys said the applicant and his wife, who is also South African, married in their home country and came to Ireland in the late 1990s. They had two children in the State.
The man had applied for and was refused refugee status and lost an appeal against the decision but had been granted leave to remain on the basis of being the father of an Irish citizen.
He had made two applications for a certificate of naturalisation, which had both been refused.
The judge said the man, who cannot be identified for legal reasons, was then convicted of the drug related offences following a trial and had been imprisoned.
The man had later been granted enhanced remission of sentence by the minister who had already issued a “proposal” to deport him. The deportation order was formally made against him later.
Judge Humphreys said the man had legally challenged his deportation claiming the justice minister’s decision to deport him was in contradiction with the fact that she, through the Irish Prison Services, had granted him enhanced remission in “recognition of a reduced risk of re-offending and in recognition of his efforts at rehabilitation”. The judge said the minister had based her deportation order on a series of reasons, including the seriousness of the man’s offence and his failure to acknowledge responsibility for it as he had maintained his innocence, contending there had been a miscarriage of justice.
The decision to deport him had also been based on the possibility that the economic difficulties caused by his conviction and imprisonment would create a potential for future criminality and obtaining a job, making him a burden to the State.
Judge Humphreys said it was legitimate for the State to take a hard line in respect of deportation of offenders convicted on indictment but it was not too much to ask that before a prisoner was afforded a rehabilitative benefit some step would be taken to ascertain formally if he or she accepted responsibility for the offence.
“Nor is it too much to ask that before a non-national prisoner is released, some inquiry is made within the same department as to what his fate is in terms of deportation,” the judge said.
The man had also claimed that his children should not be “punished for his sins”. The judge said that such a proposed rule of law would be “a jurisprudential Indian rope trick” where a rope was suspended in the air without any visible means of support. “Sentiments of sympathy for affected children are all well and good but such sentiments do not warrant a transfer to the judiciary of the function of making executive decisions,” he said.
Deportation had been a civil consequence of the applicant’s offending behaviour, he said.
“It is a shame that the applicant will now be separated from his family but he should have thought about their rights and interests prior to his offending behaviour,” the judge said.
“The material submitted to the minister does not clearly set out why the family could not move to South Africa as a unit.”
