A Ukranian father of three Irish citizen children by his second wife, and one Irish citizen child by his first marriage, has won his High Court challenge over refusal to revoke a deportation order despite his getting permission to apply for protection.
The Minister for Justice must reconsider the man's position in line with the findings of Mr Justice Richard Humphreys.
The man had been convicted in November 2015 of a sexual assault while working here as a taxi driver and received a three-year sentence which he unsuccessfully appealed.
Mr Justice Humphreys, noting the history of proceedings involving the man, said he has achieved the "not inconsiderable forensic feat" of adverse outcomes in every (non-military) court in the legal system except the EU Court of Justice in Luxembourg.
He had District Court convictions for having no insurance, the Circuit Court conviction for sexual assault, rejection of his criminal appeal by the Court of Appeal, dismissal of an earlier judicial review in the High Court, refusal of leave to appeal by the High and Supreme Courts, and a failed bid to bring proceedings to the European Court of Human Rights in Strasbourg.
Only the Luxembourg court is missing and in that regard, I might have had to suppress an inner imp urging a reference so that this applicant could complete the grand slam.
He noted the man first came here in 2001 and got residency as the father of an Irish citizen child born to him and his first wife.
Sexual assault conviction
In 2006 or 2007, he divorced and began a relationship with a Lithuanian woman who had three children from an earlier relationship. She became a naturalised Irish citizen in 2014 and she and the man have three young children in addition to the stepchildren.
The man had denied an offence of sexual assault on the night of June 9/10 2012, but was convicted in November 2015. A deportation order issued in February 2018.
He sought protection but the International Protection Office (IPO) rejected his application on February 15, 2018. His challenge and appeal over deportation were also rejected and he left the State in April 2018.
In February 2019, the International Protection Appeals Tribunal set aside the IPO decision.
The Minister then consented to the man re-applying for protection and directed he attended the IPO within 10 days.
The man "obviously" failed to do that because he was in Ukraine, the judge said. In April 2019, the Minister refused to revoke the deportation order and also refused the man a visa. The man then took judicial review proceedings.
Visa refusal was 'ephemeral'
In his judgment, the judge ruled the grant of permission to reapply for protection is the start of a process and the Minister is not entitled to "frustrate" that process. He rejected arguments the man had "voluntarily" left the State, saying he was required to do so under the deportation order.
The core issue was whether the Department was correct in declining to revoke the deportation order "and the answer to that must be No", the judge held. That meant the visa refusal was "ephemeral" and the State will presumably now grant the visa.
The judge said, if this was still an immigration case, he would have had "no problem" in holding it was well within the Minister's discretion to consider that the State's interest in visiting upon the man the consequence of his sexual assault offence against the injured party outweighed the man's interests and rights, whether to family or private life or otherwise.
However, this was no longer an immigration case, it is a protection case "and that changes everything" he said.
There had been a "significant factual change" in that the Department of Justice had granted permission to re-apply for protection and that changes the legal conclusion.
The favourable outcome for the man can to a large extent be attributed to the "persistence" of his solicitor, Wendy Lyon, and her counsel, Michael Lynn SC, the judge added.