The recent case of Sivsivadze v Minister for Justice concerns judicial review proceedings brought against the Minister to revoke a deportation order on the basis the lifelong ban imposed a disproportionate interference with Article 41 of the Constitution (right to family life.) The applicant also claimed that the ban is incompatible with section 5(2) of the European Convention on Human Rights Act 2003.
The main question that arose during proceedings was whether the Minister should insist that the deportation order should have “indefinite effect.” Hogan J referred to his own judgment in the case of U v Minister for Justice, Equality and Law (No. 1), which said the power to deport is “an exclusion from the State of indefinite duration.” Therefore, if a deportation order is made it must be “made for an indefinite duration.”
The court referred to the judgments in the cases of Emre v Switzerland (No. 1) and Emre v Switzerland (No.2) where it was held that “life long expulsion orders of this kind will be subjected to a particularly rigorous examination for compliance with the right to family life in Article 8.”
Hogan J held that a deportation order imposed for indefinite duration would infringe Article 8 ECHR. In relation to the constitutional grounds the court applied the three prong test of proportionality as set out by Costello J in the case of Heaney v Ireland. Firstly the legislation which relates to deportation of persons who have breached immigration laws are not based on “arbitrary, unfair or irrational considerations.” Secondly, although the deportation of the first applicant did “impair the Article 41 rights” these rights were impaired as “little as possible.” The third limb of Heaney compels the Court to ascertain whether “the effect on rights is proportional and objective.” Hogan J held that “it seems to me in these respects, the applicants have raised substantial grounds in respect of both the constitutional and ECHR grounds in the manner indicated.”
Click here to see the judgment in full.