CASE OF Z.A. v. IRELAND

 

 

FIFTH SECTION

CASE OF Z.A. v. IRELAND

(Application no. 19632/20)

 

 

 

 

 

 

JUDGMENT
 

STRASBOURG

9 March 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Z.A. v. Ireland,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Mārtiņš Mits, President,
 Síofra O’Leary,
 María Elósegui, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 19632/20) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Nigerian national, Mr Z.A. (“the applicant”), on 5 May 2020;

the decision to give notice to the Irish Government (“the Government”) of the application;

the decision not to have the applicant’s name disclosed; and

the parties’ observations.

Having deliberated in private on 9 February 2023,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  This case concerns the deportation order made against the applicant by the Minister of Justice, and the unsuccessful challenge to that order that he brought before the domestic courts. The applicant complains of violations of his right to respect for his private and family life under Article 8, and of his right to an effective remedy under Article 13 of the Convention.

THE FACTS

2.  The applicant was born in 1994. At the time of lodging his application he was living in Vietnam, pursuing his career as a professional football player there. He was represented before the Court by Mr A. Llussà i Torra, of Daly Lynch Crowe & Morris Solicitors, Dublin.

3.  The Government were represented by their Agent, Mr B. Lysaght of the Department of Foreign Affairs.

4.  The facts of the case may be summarised as follows.

5.  The applicant was born in Nigeria and holds the nationality of that country. He arrived in Ireland in 2001 to join his mother and siblings, his father being deceased. His mother had arrived in Ireland from Nigeria in 1999, initially claiming asylum and then later obtaining leave to remain in the State as the parent of an Irish citizen (another son, to whom she gave birth shortly after arrival in Ireland and who automatically qualified for Irish citizenship under the law in force at that time). She later obtained Irish citizenship herself, as have all of the applicant’s six siblings.

6.  Until the applicant’s sixteenth birthday in 2010, he had permission to remain in Ireland as a dependant of his mother. Thereafter, permission to remain was granted to him in his own right, first for one year (2010-2011) and then for a period of three years (from March 2011). This was subject to certain conditions, notably that he obey the laws of the State and not become involved in criminal activity. In June 2014, when criminal proceedings in his regard were pending (see below), he again sought permission to remain in the State, indicating that he had also applied for naturalisation and that this request was then pending. His permission to remain was not renewed.

CRIMINAL PROCEEDINGS

7.  In March 2010, the applicant was charged with one offence of sexual assault and two offences of the attempted defilement of a child under the age of 17. These charges arose out of incidents that took place in February and March of 2010 involving the applicant, then aged 16, and several other teenage boys. The victim was a 14-year-old girl known to them.

8.  The trial did not take place until 2014, by which time the applicant was 20. The applicant pled guilty to the above charges. Sentencing took place in the Circuit Court on 31 October 2014. The judge observed that the cases (the applicant’s and the others involved) were serious, and the sexual activity they had engaged in with the victim was quite concerning. He noted that for the victim the offences committed against her had been very distressful to her and very disturbing. He referred to the assessment in the probation report which assessed the risk of the applicant reoffending as moderate and stated that it was worrying that even after four years the convicted persons did not appreciate how serious the experience had been for the victim. He stated that in view of the time that it had taken for the matter to come to court, that he would – as a matter of fairness to the applicant – suspend the two-year sentence. However, due to the concerns he had voiced, the period of suspension was set at three years. He also placed the applicant under the supervision of the Probation and Welfare Service for a period of 12 months, ordering him to follow any instructions the service might give to him.

9.  Some months previously (July 2014), the applicant was apprehended driving on a motorway without a full driving licence and without car insurance. He appeared in the District Court on 27 February 2015 where he was convicted of these infringements of traffic law and fined 300 euros.

DEPORTATION PROCEEDINGS

10.  The applicant was notified, by letter dated 26 February 2015, that the Minister for Justice and Equality proposed to make a deportation order against him under section 3 of the Immigration Act, 1999. The order was made in April 2016. It was challenged by the applicant in judicial review proceedings and revoked by the Minister in November of that year. It is not relevant to this case.

11.  In November 2016 the Minister notified the applicant that the proposal to deport him would be considered again, and he was invited to make fresh representations to the Minister, which his legal representative did in December 2016.

Analysis of 7 April 2017 by the Irish Naturalisation and Immigration Service

12.  The matter was the subject of a detailed analysis, dated 7 April 2017, by the Irish Naturalisation and Immigration Service (INIS) within the Department of Justice and Equality. The analysis described the applicant’s personal history and his current circumstances, having regard to the representations made on his behalf. It considered his employment prospects, concluding that in light of his talent and achievements playing professional football in Ireland, his immediate employment prospects in that field were good. Outside of that, though, it found that his employment prospects were limited, it not having been shown that he had any specialist skills that were in demand in the Irish labour market. It further noted that as he did not then have permission to reside in the State he was not permitted to work there either.

13.  As for the applicant’s links with Nigeria, the analysis noted that he had spent his initial formative years there as part of a family that had included his mother until she left for Ireland in 1999. Therefore, he had had experience of Nigerian culture and norms. It seemed that he still had close relatives in Nigeria (maternal grandmother and maternal aunt; paternal uncle). In light of this, while he might have difficulties if returned to Nigeria as an adult, these would not be so severe as to rule out a decision to deport him.

14.  With reference to Article 8 of the Convention, the analysis accepted that deportation would represent an interference with the applicant’s right to respect for his private life, having regard to his work, educational and other social ties in Ireland and to his personal development since he arrived in the country. It took account of his education in the State at primary, secondary and third level, his success at football and his wish to study sports science. It considered that the applicant would be able to pursue a career in football in Nigeria, where it was a major and well-developed sport, and referred to a media report of interest in him as a possible future player for the Nigerian football team.

15.  The analysis took the view that deportation of the applicant would be a proportionate means of preventing disorder and crime. It referred to the sexual offences of which the applicant was convicted, clarifying that it was only these that were being taken into account, and not the other charges that had been brought against other members of the group of boys, and which were also mentioned in the report that had been received from the police about him. It noted that the applicant’s account of the offences differed from the account given by the victim, and that he sought to contradict the contents of the report submitted by the police. It further noted the representations made on the applicant’s behalf in relation to these offences, namely: that he believed that the victim was aged 17 at the time; that the offences he had pled guilty to were ones of strict liability; that the victim’s age had been ascertained on the basis of a birth affidavit sworn by her after it had transpired that her birth certificate was false; and that the judge who had dealt with the case had noted that there was no evidence of absence of consent to the sexual acts. The analysis considered that the applicant had been convicted of very serious sexual offences involving a minor. While the applicant had also been a minor at the time, he had nevertheless been above the age of criminal responsibility in Irish law (which is 12 years). Acknowledging the applicant’s submission that he had shown remorse towards the victim during the years that the criminal proceedings were pending, and that he had sought to offer her an apology through the police, the analysis noted that he had not engaged in any rehabilitative therapy. Moreover, media reporting on the victim’s state of mind indicated after the offences (those committed by the applicant as well as the others) indicated that these had had a very strong, lasting negative impact on her. Furthermore, the traffic offences committed by the applicant pointed to a continued disregard for the laws of the State.

16.  The analysis then referred to the case A.A. v. the United Kingdom, no. 8000/08, 20 September 2011, noting certain similarities between the facts of that case and the applicant’s situation. However, whereas the applicant in A.A. had shown exemplary conduct after release from prison, the present applicant had not provided any information about formal rehabilitation and had committed further offences. His two sets of convictions demonstrated an ongoing disregard for the laws of the State, which constituted a threat to the requirements of public policy. The analysis referred to the Minister’s responsibility to maintain law and order and safeguard the common good.

17.  Under the heading “Balancing Rights”, the analysis referred to the State’s right and obligation to protect victims of crime and the wider public. It noted that any proposed actions to alleviate concerns around public safety must be proportionate and consistent with the Constitution and international obligations. It took the view that although the applicant had come to Ireland at the age of 7 and had lived there ever since with his family, he had not lost all social or cultural ties to Nigerian society and would be able to re-integrate there. In light of these considerations, it considered that the interests of preventing disorder and crime outweighed the applicant’s right to respect for his private life.

18.  The analysis then had regard to the applicant’s family life. It noted that he was then living with his mother, two of his brothers, one of his sisters and her two children. It also noted the information that for four years he had been in a relationship with an Irish national, who was in third-level education in Dublin. No supporting evidence of this, such as photographs, had been provided, though. Accepting that deportation would represent an interference with the applicant’s family life, the analysis assessed the proportionality of the measure, essentially repeating what was said in relation to private life.

19.  Under the heading “Balancing Rights” the analysis took the view that it would be possible for the members of the family, individually or collectively, to relocate to Nigeria in order to continue to maintain the family unit. No submissions to the contrary had been made by them. It would also be possible for them to visit him there. As for the applicant’s girlfriend, as she too had been born in Nigeria and had spent some years there, there would be no obstacle to her moving there in order to continue the relationship. The analysis concluded that the public interest in preventing disorder and crime outweighed the applicant’s family rights, and that no less restrictive measure was available to achieve those aims.

20.  Finally, the analysis considered the constitutional rights of the applicant’s family, as citizens of Ireland. It noted that while they had both personal and family rights under the relevant provisions of the Constitution, these were not absolute rights and must be weighed against the rights of the State. The latter included the right to control the entry, presence and exit of foreign nationals. Relevant considerations in this respect included national security, public policy, the integrity of the immigration scheme, its consistency and fairness to persons in the State, and also the common good. The analysis further observed that while each case is to be decided on its merits, having regard to the rights of all those concerned, consideration must also be given to the fact that a decision to allow the applicant to remain in the country might lead to similar decisions in other cases. It came to the conclusion that the constitutional rights of the applicant’s family members did not outweigh the rights of the State, and that his deportation could not be considered disproportionate from this perspective. There was a substantial reason associated with the common good that required the applicant’s removal from Ireland.

Deportation order of 21 April 2017 by the Minister of Justice

21.  The Minister accepted the recommendation to deport the applicant. The deportation order was issued on 21 April 2017, setting 4 June 2017 as the date by which the applicant must leave the State.

22.  The applicant sought leave to bring judicial review proceedings in the High Court with a view to quashing the order (certiorari). While he raised a series of grounds, for present purposes it is sufficient to note that he argued that deportation would represent a disproportionate interference with his private and family life. He also sought a declaration that the provisions of the Immigration Act 1999 were incompatible with the European Convention on Human Rights inasmuch as they did not provide for an independent review mechanism before which a person facing deportation could bring an appeal.

High Court judgment of 30 May 2019

23.  The High Court judgment was delivered on 30 May 2019. As regards the applicant’s challenge to the reasonableness and proportionality of the Minister’s decision, the judge referred to the relevant case-law of the Supreme Court (the Meadows judgment, see paragraphs 46-48 below for relevant excerpts) and to a relevant High Court judgment (the ISOF judgment, see paragraph 49 below for relevant excerpt). As for the case-law of this Court relied on by the applicant, the judge remarked that he had drawn selective comparisons between the facts of those cases and his own case in order to argue that the Minister’s decision failed the proportionality test for having given insufficient weight to some factors or excessive weight to others. He observed that this was not the correct approach. Rather, in view of Meadows and ISOF, the question was whether the applicant could:

“identify some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense.”

24.  The applicant argued, first, that the Minister had failed to weigh sufficiently in his favour the fact that a custodial sentence had not been imposed, and yet had decided to bar him from the State for life. The judge considered that the issue whether the applicant could be expected to cause disorder or engage in criminal conduct in future was not limited to the severity of the sentence he had received. There were other relevant factors in this respect: the nature and seriousness of the offences, the risk of the applicant reoffending and any further propensity to contravene the criminal law of the State. Furthermore, it was “at best, incomplete, and, at worst misleading” to argue that a deportation order was for life, given the express statutory power of the Minister to revoke a deportation order. As had been affirmed by the Supreme Court (the Sivsivadze judgment, see paragraph 51 below for relevant excerpts), there was nothing in the relevant statutory provisions to restrict the Minister from fully taking into account the constitutional and Convention rights affected by the making or revocation of a deportation order.

25.  The applicant’s second argument was that the Minister had counted against him the fact that he had not engaged in any formal rehabilitation programme or activity, whereas he had not actually been ordered to do so as part of his sentence. The judge rejected this argument, stating that participation in formal rehabilitation activity was not confined to persons in custody or released on probation.

26.  The applicant next argued was that it had not been sufficiently substantiated that he could reasonably be expected to cause disorder or engage in criminal conduct in future, relying in this respect on the case A.A. v. United Kingdom. The judge pointed to certain factual differences between the two situations: the age at which the sexual offence had been committed; A.A.’s exemplary behaviour while serving his sentence and subsequently, which was in contrast to the applicant’s motoring offences that arguably demonstrated a propensity to reoffend and a disregard for the criminal laws of the State; the fact that A.A. had been assessed as posing a low risk of re-offending, whereas for the applicant had been assessed as posing a moderate risk.

27.  Finally, the applicant argued that it was irrational to conclude from the two motoring offences that he had a propensity to reoffend. The judge identified two misconceptions in this argument. The first was that only the likelihood of further sexual offences should be relevant here. Instead, it was open to the Minister to have regard to criminal activities more generally. The second was that infringements of traffic laws should not be taken as relevant in this particular context. However, it had previously been affirmed by the Supreme Court that in the immigration context the Minister was entitled to treat the offence of driving without insurance as a serious matter.

28.  The judge concluded that the applicant had failed to establish any flaw or failure in the way in which the Minister approached the necessary balancing exercise that was capable of showing that the impugned decision was unreasonable or irrational. The applicant’s other grounds of challenge, not relevant to his application to this Court, were also rejected.

29.  Finally, the judge considered the argument about the lack of an independent appeal. He noted that while leave had been given to rely on this ground, it had not been addressed in the applicant’s written submissions or raised orally; the applicant’s counsel had indicated that she was reserving her right to make such an argument in reply to the Minister, but this had not happened. Nonetheless, he stated that for completeness he would deal with the argument. He once again cited the ISOF judgment, which had affirmed that where a person subject to deportation asserts that it would intrude disproportionately on their fundamental rights, the court must assess whether the order is indeed disproportionate in the sense of being irrational according to the applicable test (see the information provided on relevant domestic case‑law at paragraphs 46-50 below). It was the function and duty of the High Court to vindicate the individual’s rights under the Constitution. The same could be said for rights under the Convention, it being necessary for the High Court to provide an effective remedy with respect to such rights, in compliance Article 13. Citing from another High Court judgment (Lofinmakin (a minor) v Minister for Justice, Equality and Law Reform, [2011] IEHC 38), the judge recalled that where it is shown that the material facts on which a deportation order is based establish a violation of a Convention provision, the High Court can quash the Minister’s decision. He concluded that an effective remedy was available, as required by Article 13 of the Convention, for any person alleging a breach of their right to respect for private and family life in the context of deportation.

30.  The applicant sought leave to appeal. In filing this request, his lawyers informed the High Court that he had by then left the State to take up employment as a football player in Vietnam, but that he wished to maintain his challenge to the deportation order. The High Court was asked to grant the necessary certificate on the following points of law:

“(i) Is an examination of whether the Minister’s decision meets the requirements of proportionality under Art. 8 ECHR confined to determining whether the applicant can identify some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense?

(ii) Is the learned trial judge correct in determining that the statement that the duration of a deportation order is for life is, at best, incomplete and, at worst misleading because it disregards the Minister’s power under s.3(11) of the Act of 1999 to revoke a deportation order?”

31.  In relation to point (i), the applicant argued that it was a requirement of Article 8 of the Convention that there be sufficient procedural safeguards to ensure that any interference with an individual’s rights was proportionate. This required the availability of a proportionality review conducted by an independent body. He further argued that the judge had not assessed the deportation order in keeping with the criteria set out by the European Court but had instead applied the narrower test developed in domestic case-law.

32.  In opposing the application State counsel argued that the issue of an appeal to an independent body should have been raised in a clear and express way so as to permit the High Court to consider and decide the issue. It was not sufficient to raise the point in a vague manner beforehand in the statement of grounds, fail to pursue it during the hearing and then attempt to raise it again as a ground of appeal.

Decision of 11 July 2019 of the High Court to refuse leave to appeal

33.  In a decision given on 11 July 2019 the trial judge refused to grant leave to appeal, finding that the necessary condition of there being an issue of “exceptional public importance” was not satisfied.

34.  Replying to the argument about need for an independent appeal, the judge observed that the applicant’s counsel had not in fact raised such an argument during the proceedings, and so it would be wrong in principle to allow an appeal on a point not argued before the High Court. He added that even if he were wrong about that, the relevant domestic law principles were settled and so there was no justification to allow an appeal on this ground. As to the argument that the High Court should have abandoned the settled test in domestic law for assessing reasonableness and proportionality, in favour of the practice of the European Court of Human Rights, the judge noted that the applicant had not previously suggested that there was any tension between the two, much less that the High Court should depart from domestic jurisprudence in favour of European jurisprudence. Nor had the Supreme Court seen any tension between the two.

35.  The applicant then sought leave to appeal directly to the Supreme Court. As required by Article 34.5.4˚ of the Constitution, it was necessary to demonstrate the presence of exceptional circumstances warranting a direct appeal, a precondition of which was to show that the appeal involved a matter of general public importance and/or the interests of justice.

36.  The applicant submitted that the matter of general public importance in his case was the correct test where judicial review bears on the protection of fundamental rights in the deportation process, as this had implications not just for that area of the law but for other administrative decisions affecting fundamental rights. He further argued that the extent to which the domestic courts should have regard to ECHR jurisprudence in such a context was likewise of general public importance, affecting other types of case as well.

37.  He further argued that the case disclosed a breach of his right of access to the courts and to have the proportionality of the deportation order examined, since the trial judge had found against him by unexpectedly applying a more limited form of scrutiny than a proper proportionality test, and then refused leave to appeal against that decision on the erroneous basis that the applicant had accepted the test and had not raised any discrepancy between domestic law and relevant Convention principles. As a result, the applicant’s central argument, based on the criteria set out in Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII, had not been the subject of any analysis in the judicial review proceedings.

Decision of 13 November 2019 of the Supreme Court to refuse leave to appeal

38.  On 13 November 2019 the Supreme Court refused leave to appeal. It considered that the High Court had fully considered the issue before it and had applied the relevant principles of well-established case-law. There was no basis to assert that the High Court had been mistaken in the application of the proportionality test or that the test was not settled.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

RELEVANT STATUTORY PROVISIONSImmigration law

39.  The power of the Minister of Justice to deport a non-national is laid down in section 3(1) of the Immigration Act 1999, which provides that the Minister may require the person to leave the State “and to remain thereafter out of the State.”

Section 3(2) lists the categories of persons who may be the subject of a deportation order. The applicant came within category (i):

“a person whose deportation would, in the opinion of the Minister, be conducive to the common good.”

Section 3(3) provides that the person concerned has the right to make representations in writing to the Minister, who shall:

“(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) notify the person in writing of his or her decision and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.”

Section 3(6) sets out the factors to be taken into account in the making of a deportation order. It provides:

“In determining whether to make a deportation order in relation to a person, the Minister shall have regard to—

(a) the age of the person;

(b) the duration of residence in the State of the person;

(c) the family and domestic circumstances of the person;

(d) the nature of the person’s connection with the State, if any;

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions);

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;

(j) the common good; and

(k) considerations of national security and public policy,

so far as they appear or are known to the Minister.”

40.  Section 3(11) of the Act provides that the Minister may revoke a deportation order.

41.  Section 5(1) of the Illegal Immigrants (Trafficking) Act 2000, as amended, provides that a deportation order can be challenged only via judicial review before the High Court. Section 5(3) of the Act provides that the High court’s decision shall be final. An appeal can be brought only where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the case be appealed.

Criminal law

42.  The applicant was charged with one count of sexual assault contrary to section 2 of the Criminal Law (Rape) Amendment Act 1990 (“the 1990 Act”), which provides:

“2. (1) The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.

(3) Sexual assault shall be a felony.”

43.  The other offence with which he was charged, attempted defilement of a child under the age of 17, is prescribed by section 3 of the Criminal Law (Sexual Offences) Act, 2006, (“the 2006 Act”) which provides as relevant:

“S. 3(2) Any person who attempts to engage in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall, subject to subsection (4) be liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 2 years, ...”

Traffic law

44.  Under the Roads Regulations 1994, made by the Minister for Transport under the Roads Act 1994, only drivers holding a full driving licence may drive on a motorway.

45.  Driving without insurance is made an offence by section 56 of the Road Traffic Act 1961. Upon summary conviction, a person having committed the offence may be fined up to a maximum of 5,000 euros, and/or sentenced a term of imprisonment of up to a maximum of six months.

RELEVANT CASE-LAWJudicial review and proportionality

46.  As indicated above, in the domestic proceedings in the present case the High Court referred to the judgment of the Supreme Court judgment in Meadows v. Minister for Justice [2010] 2 IR 701. Murray C.J. set out how the remedy of judicial review can encompass considerations of proportionality (since known as the Meadows principles). He stated:

“In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense I see no reason why the court should not have recourse to the principle of proportionality in determining those issues. ...

The principle requires that the effects on, or prejudice to, an individual’s rights by an administrative decision be proportional to the legitimate objective or purpose of that decision. Application of the principle of proportionality is in my view a means of examining whether the decision meets the test of reasonableness. I do not find anything in the dicta of the court in [the Keegan or O’Keeffe judgments] which would exclude the court from applying the principle of proportionality in cases where it could be considered to be relevant. ...”

He later stated:

“I am of the view that the principle of proportionality is a principle that may be applied for the purpose of determining whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from the premises on which it is based and to be in accord with fundamental reason and common sense. In applying the principle of proportionality in this context I believe the Court may have regard to the degree of discretion conferred on the decision-maker. In having regard to the degree of discretion a margin of appreciation should be allowed to the decision-maker in choosing an effective means of fulfilling any legitimate policy objectives.

Accordingly I am satisfied that the principle of proportionality has a legitimate and proper function in examining whether, in accordance with the principles of Keegan and O’Keeffe, in particular those outlined by Henchy J. [in the Keegan case], an administrative decision is valid.”

47.  In her concurring judgment in the same case, Denham J stated:

“Any effect on rights should be within constitutional limitations, should be proportionate to the objective to be achieved. If the effect is disproportionate it would justify the court setting aside the decision.”

48.  Also concurring, Fennelly J affirmed that a decision may affect fundamental rights to such a disproportionate degree, having regard to the public objectives pursued, that it may justifiably be labelled as so unreasonable that no reasonable decider could justifiably have made it. He referred in this respect to the statutory duty (under the section 3 of the European Convention of Human Rights Act, 2003) on every organ of State to perform its functions act compatibly with the State’s obligations under the Convention, and also to the requirements of Article 13 of the Convention. Referring to the principles laid down in the Keegan and O’Keeffe cases, he stated:

“71. ... This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J [in the Keegan case]. The applicant must discharge that burden by producing relevant and cogent evidence.

72. This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.”

49.  The Meadows judgment was followed shortly afterwards by the High Court in the case I.S.O.F. v. Minister for Justice, [2010] IEHC 386, also referred to by the High Court in the domestic proceedings in the present case. The High Court (Cooke J.) stated:

“It is not enough, in the view of the Court, to simply assert that the Minister ought to have given greater weight to some factors or less to others. The onus of establishing the unlawfulness of the decision lies with the applicant. The duty to balance proportionately the opposing rights and interests of the family on the one hand and the interests the State seeks to safeguard on the other, lies with the Minister. It is the Minister who must assess and decide by reference to all of the matters he is required to consider under the statutes and in light of all of the information and representations put before him, whether the latter interests should prevail or not. Contrary to the implication of the argument made by counsel for the applicants, the High Court is not entitled or obliged to re-examine the case with a view to deciding whether, in its own view, the correct balance has been struck. To do so would be substitute its own appraisal of the facts, representations and circumstances for that of the Minister. As the Supreme Court made fully clear in the Meadows case, the test to be applied in assessing whether an administrative decision of this nature is irrational or unreasonable (including unreasonable by virtue of disproportionality,) remains that established in the Keegan and O’Keeffe cases. Accordingly, the function of the Court is to consider the manner in which the evaluation has been made by the Minister as apparent from the order, the covering letter and the contents of the File Note, and ask itself in paraphrase of the terms formulated by Henchy J.: “Does the conclusion to deport the applicant flow from the premise upon which it is based; or does it, by reason of some flaw or failure in the way in which the balancing exercise was apparently approached, result in a conclusion which ‘plainly and unambiguously flies in the face of fundamental reason and common sense?’”

50.  The following year, in the case of Efe and Ors. v. Minister for Justice, Equality and Law Reform and Ors., [2011] IEHC 214, the High Court (Hogan J) observed that it was plain that a majority of the Supreme Court in Meadows was prepared to apply a general proportionality test in respect of all decisions affecting fundamental rights. In view of that judgment, there was no basis for contending that common law rules of judicial review failed to satisfy the requirements of Article 13 of the Convention with regard to an effective remedy.

Revocation of deportation orders

51.  In the case of Sivsivadze v. Minister for Justice and Equality, [2015] IESC 53, the Supreme Court considered a constitutional challenge to section 3 of the Immigration Act 1999. It was argued that since under this provision deportation orders were unlimited in time, they necessarily had disproportionate impact on the families of those subject to deportation. The argument was rejected. Murray J stated that a deportation was not necessarily unlimited in time. While it would not contain within itself a time limit, the power of the Minister to revoke a deportation order (s. 3(11) of the act, see above) could not be ignored. Thus, the Minister could revoke it at any time where he or she considered it appropriate to do so. This power had to be exercised compatibly with the Constitution, meaning that all relevant factors, including rights pertaining to the family and family life, must be taken into account. The power was not limited to situations where there had been a change in the circumstances of the person to be deported or of those of his family affected by the order. The important was that the Minister’s decision on a request to revoke a deportation order is made having regard to all relevant circumstances as they are at that time. In making that decision, the Ministers must take account of the factors that statute or the Constitution require to be considered, and the decision may be subject to judicial review. As for Convention rights, by virtue of section 3 of the European Convention on Human Rights Act the Minister was under an obligation to ensure that the decision was proportionate having regard to the family rights, under Article 8, of those affected.

52.  In the case P.O. and Anor. v. Minister for Justice, Equality and Law Reform, [2015] IESC 64, the Supreme Court considered an appeal against the refusal of the High Court to set aside the Minister’s refusal to revoke a deportation order made against the appellants. McMenamin J, referring to an earlier judgment of the Supreme Court, reiterated that it was only when new material was advanced that a revocation application might be properly considered. He added that the Minister did not have complete discretion in the matter. Any relevant new facts, materials or circumstances were to be included in an overall assessment.

He continued:

“16. What is involved in making decisions of this type is not a policy decision, but rather involves the exercise of a margin of appreciation relating to the facts of individual cases. As has been pointed out in a number of High Court authorities, the Minister, in considering an application under s.3(11), the Minister has two duties. She must consider carefully and fairly the reasons put forward for revocation. She must also verify that there has been no change in circumstances since the making of the deportation order, either insofar as concerns the applicants, or the situation in the country of origin, which would bring into play any of the statutory prohibitions for the return of a failed asylum seeker to the country of origin. There is no obligation to embark on a new investigation or enquiry, or to enter into an exchange of observations or replies with an applicant. There is no suggestion that the Minister is operating a blanket policy, which would allow for no exceptions.”

53.  In the same case Charleton J stated that the entitlement to request the Minister to revoke a deportation order did not contemplate the resubmission of old and rejected contentions. Rather, something new involving substantial change is required. The Minister’s discretion here was a broad one. The purpose of the power was to make it possible for any serious adverse developments in the person’s country of origin after the making of the deportation order to be taken into account. In genuinely exceptional circumstances, a change in personal circumstances might also be part of such a reconsideration.

THE LAW

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

54.  The applicant complained that the deportation order made against him represented a failure to respect his private and family life contrary to Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Admissibility

55.  The Government did not contest the admissibility of this complaint.

56.  The Court notes that, although the applicant left the respondent State before the impugned deportation order had been implemented, potentially raising a question regarding his continued victim status, the relevance of his departure will be factored into the Court’s assessment of his complaint on the merits. Otherwise, finding that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention, the Court declares it admissible.

MeritsThe parties’ arguments

(a)   The Applicant

57.  The applicant underlined that he had been a settled migrant in Ireland for a prolonged period, having had permission to remain there for more than 13 years. As for the sexual offences, he made a series of points about the elements of those offences (the actus reus), the exact charges that had been brought and the specific exclusion of the defence of consent, with a view to relativising the seriousness of his convictions. He noted that the sentencing judge had not imposed any condition on him to undergo counselling, therapy, treatment or any other form of rehabilitation. The Government’s argument that he should or could have participated in some form of rehabilitative on his own initiative was not realistic given the very limited availability of such services in Ireland and the fact that the cost of such services put them beyond the applicant’s means, he not having the right to take up employment at that time on account of his immigration status. As for the traffic offences, he pointed to the relatively light sanction that had been imposed on him.

58.  With reference to the criteria set out by the Court in the Üner and Maslov judgments, he submitted that while the sexual offences had been serious, they were nonetheless at the less serious end of the range and had been committed while he was a minor. He had lived in Ireland for almost 18 years before he left. By the time of his departure, nine years had elapsed since the sexual offences, and five years since the traffic offences. These periods without any other offending were long enough to mitigate fears of recidivism on his part. During all of his time in Ireland he had lived with his family and had been in a long-term relationship with an Irish national when he left the State. As for his country of origin, he had little knowledge of Nigerian society and its norms.

59.  The applicant further underlined the open-ended nature of the deportation order. Domestic law did not provide for time-limited exclusions. As established in domestic case-law, a deportation order might be revoked only in genuinely exceptional circumstances. In the absence of these, a person deported was banned for life from re-entering the State. Given that all of his immediate family lived in Ireland, such a restriction had to be seen as disproportionate.

60.  As for the process leading to his deportation, the applicant contended that it had not been attended by adequate safeguards. He had been informed at the outset of the procedure that the Minister would be taking account of the police report that had referred to much more serious offences (rape, false imprisonment) with which the applicant had never been charged. It had been wrong for the Minister to go behind the applicant’s actual convictions and sentence.

61.  Lastly, the applicant argued that he had not been able to have the proportionality of the deportation order determined by an independent tribunal.

(b)   The Government

62.  The Government submitted that the deportation order against the applicant had been lawful and pursued the legitimate interest of the prevention of disorder or crime. The Minister had struck a fair balance interest between that interest and the applicant’s rights under Article 8, as recognised by the High Court. The Minister’s decision had been informed by an analysis that took account of the relevant case-law of the European Court.

63.  The Government noted that the grant of permission to remain to the applicant in his own right from 2010 onwards had been subject to the condition that he comply with Irish laws in all respects. He had breached that condition by committing serious sexual offences. Although at 16 he had been a minor at the time, he had been above the age of criminal responsibility in Ireland (12 years). The offences could not be regarded as acts of juvenile delinquency, and the applicant’s failure to engage in rehabilitation was particularly significant. The fact that he had not been ordered to engage in rehabilitation was of no relevance, since this was not a precondition for undergoing rehabilitative activity, as the High Court had stated.

64.  As for the applicant’s subsequent behaviour, he had committed traffic offences four years later. This was relatively significant as a matter of Irish law, as could be seen from the range of applicable penalties. It could not therefore be said that he had been law abiding for a significant period. The Minister had been justified in taking the view that these offences pointed to a disregard for the laws of the State.

65.  The Government contended that while deportation to Nigeria would necessarily involve a degree of hardship for the applicant, he had not suggested that there was anything in his particular circumstances or background that meant he would not be able to adapt to life there. This was borne out by his departure for Vietnam while the domestic proceedings were still ongoing. Family relations could be maintained by modern means of communication.

66.  Having identified the relevant factors, it was within the margin of appreciation of the domestic authorities to decide what weight was to be given to them. The Minister had been entitled to come to the conclusion that the public interest in the deportation of the applicant should prevail. Furthermore, the Minister had the power to revoke the order at any time. This power had to be exercised in a manner compatible with human rights; a refusal to revoke could be challenged in judicial review proceedings.

67.  As for the decision-making process, the Government submitted that the Minister’s decision had been based on substantive consideration of the relevant factors, which had been set out in detail, and had balanced the interests of the applicant against those of the community in accordance with established legal principles. The process had included a balanced proportionality assessment carried out after having carefully considered the representations made on behalf of the applicant and all the relevant facts that were known to the Minister. The High Court had found no flaw or failure in the Minister’s approach that could lead to it being quashed as unreasonable or irrational.

68.  Replying to the applicant’s argument that the Minister should not have had regard to the contents of police report, the Government observed that this objection had not been raised at any point during the domestic proceedings. In any event, it was clear that the Minister had been well aware of and taken account of the applicant’s concerns regarding this report.

The Court’s assessment

(a)   General principles

69.  The Court’s case-law regarding the deportation of settled immigrants is well-established (see variously Üner, cited above, §§ 54-60, and Maslov v. Austria [GC], no. 1638/03, ECHR 2008, §§ 71-76). This case-law has consistently affirmed that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.

70.  The Court further refers to the case of Savran v. Denmark [GC], no. 57467/15, 7 December 2021, in which the Grand Chamber recalled the Maslov principles, as further elaborated and applied in subsequent cases. It stated, as relevant to the present case (internal cross-references omitted):

“182.  In Maslov the Court further set out the following criteria as relevant to the expulsion of young adults, who have not yet founded a family of their own:

– the nature and seriousness of the offence committed by the applicant;

– the length of the applicant’s stay in the country from which he or she is to be expelled;

– the time that has elapsed since the offence was committed and the applicant’s conduct during that period; and

– the solidity of social, cultural and family ties with the host country and with the country of destination.

In addition, the Court will have regard to the duration of the exclusion order (ibid., § 98; see also Külekci v. Austria, no. 30441/09, § 39, 1 June 2017, and Azerkane v. the Netherlands, no. 3138/16, § 70, 2 June 2020). Indeed, the Court notes in this context that the duration of a ban on re-entry, in particular whether such a ban is of limited or unlimited duration, is an element to which it has attached importance in its case-law (see, for example, Yilmaz v. Germany, no. 52853/99, §§ 47-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; Keles v. Germany, no. 32231/02, §§ 65‑66, 27 October 2005; Külekci v. Austria, cited above, § 51; Veljkovic‑Jukic v. Switzerland, no. 59534/14, § 57, 21 July 2020; and Khan v. Denmark, no. 26957/19, § 79, 12 January 2021).

183.  All of the relevant criteria established in the Court’s case-law should be taken into account by the domestic courts, from the standpoint of either “family life” or “private life” as appropriate, in all cases concerning settled migrants who are to be expelled and/or excluded from the territory following a criminal conviction (see Üner, cited above, § 60, and Saber and Boughassal, [full reference Saber and Boughassal v. Spain, nos. 76550/013 and 45938/14, 18 December 2018], § 47).

...

185.  The weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case; where the aim is the “prevention of disorder or crime”, they are designed to help domestic courts evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities (see Maslov, cited above, § 70).

186.  Moreover, for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion (ibid., § 75).

187.  National authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued. However, the Court has consistently held that its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual’s rights protected by the Convention on the one hand and the community’s interests on the other. Thus, the State’s margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8 (ibid., § 76, and the cases cited therein).

188.  Domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, without any real balancing of the interests in issue, this would be contrary to the requirements of Article 8 of the Convention. In such a scenario, the Court will find that the domestic courts failed to demonstrate convincingly that the respective interference with a right under the Convention was proportionate to the aim pursued and thus met a “pressing social need” (see El Ghatet v. Switzerland, no. 56971/10, § 47, 8 November 2016).

189.  At the same time, where independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant’s personal interests against the more general public interest in the case, it is not for the Court to substitute its own assessment of the merits (including, in particular, its own assessment of the factual details of proportionality) for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see Ndidi, [full reference Ndidi v. the United Kingdom, no. 41215/14, 14 September 2017], § 76; Levakovic, [full reference Levakovic v. Denmark, no. 7841/14, 23 October 2018], § 45; Saber and Boughassal, cited above, § 42; and Narjis, [full reference Narjis v. Italy, no. 57433/15, 14 February 2019], § 43).”

(b)   Application of those principles in the present case

71.  At the outset of its analysis, the Court would make two preliminary remarks. The first concerns the applicant’s age at the key points in time in this case. When he committed the sexual offences described above, he was 16 years old and thus a minor. The criminal process in relation to those offences did not conclude until October 2014. The applicant was therefore 20 years old when he appeared in court for sentencing. In that same year he committed the traffic offences described above. The deportation proceedings that are the subject of this case were initiated when the applicant was aged 22, and he left the State when he was 25. At the time of the Court’s examination of his case, the applicant is close to 30 years old. In view of this, although the facts of the case include offences committed by the applicant while a minor, the principles laid down in the Maslov case and reiterated in Savran can only be of very limited relevance to his Article 8 complaint.

72.  The second remark concerns the applicant’s voluntary departure from Ireland in 2019 to pursue his career as a professional football player elsewhere. He left the country while his challenge to the deportation order was still in progress, meaning that he was not actually deported. The Court considers that the fact that the applicant left the country by choice has to be taken into account in assessing his complaint, and it will refer to it as appropriate.

(i)      Whether family and/or private life

73.  The applicant framed his complaint in terms of his private and family life and the Government addressed both aspects in their submissions. Likewise, the analysis that informed the Minister’s decision treated deportation as an interference with the applicant’s right to respect for both private and family life, and the case was argued on this ground during the domestic proceedings.

74.  The Court accepts that the applicant was a settled migrant in Ireland, given the age at which he arrived and the duration of the period in which he was lawfully resident there (2001-2014). As to whether the applicant’s relations with his immediate family are to be regarded as “family life” within the meaning of Article 8, the Court has held in some cases that there will be no family life between parents and adult children or between adult siblings unless additional elements of dependence are demonstrated. While the applicant was living with his mother and some of his siblings in the family home until he left the country, it has not been suggested that there was any element of dependence among them. Indeed, in his submissions he noted that by 2017 he was a “nationally known football player”.

75.  In some cases, the Court has not insisted on additional elements of dependence, where the applicant was a young adult who was still living in the family home and had not yet started a family of their own (see Savran, cited above, § 174, with further references). In this case, however, having regard both to the applicant’s age when he left, and more particularly to the fact that he opted to leave in pursuit of professional opportunities abroad, the Court considers that these circumstances make it more appropriate for it to focus on the “private life” aspect, and it will examine the case from that perspective only.

76.  As the Court has established in its case-law, the concept of private life encompasses the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of a person’s social identity. It is therefore accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of private life within the meaning of Article 8 (see Savran, cited above, § 173). With respect to the applicant’s relationship with his girlfriend, the Court notes from the information contained in the file that, when he made representations to the Minister in late 2016, he stated that he was then in a four-year relationship with an Irish national. The following year, in an affidavit sworn for the purposes of the proceedings in the High Court, the applicant stated that that relationship had ended and that he had begun a relationship with another person, seven months before. The Court observes that this later relationship commenced very close to the time the applicant was notified of the Minister’s decision and that its duration by then was short. While the relationship can be considered as pertaining to his private life (see, among others, Azerkane v. the Netherlands, no. 3138/16, § 65, 2 June 2020), the Court cannot attribute much weight to it.

(ii)    Whether an interference

77.  As stated above, the applicant was not actually deported from Ireland but left the country voluntarily to take up employment as a professional football player in Vietnam. The deportation order, which became effective following his unsuccessful challenge, prevents him from returning to Ireland. This is the form that the interference takes in this case with the applicant’s right to respect for private life.

(iii)   Whether interference justified

78.  The Court must now examine whether the measure complained of can be regarded as justified under Article 8 § 2 of the Convention.

(α)     Legal basis and legitimate aim

79.  The Government submitted that the deportation order was “in accordance with the law” and pursued the aim of preventing disorder and crime. The applicant did not seek to contradict either point, concentrating his arguments instead on the issues of necessity, proportionality and procedural safeguards. For its part, the Court considers that, from the perspective of Article 8, there were no issues either with the legal basis of the deportation order, or with the aim identified by the Government.

(β)      Whether interference necessary in a democratic society

80.  As stated in the case-law quoted above, the Court is empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8. That does not mean that in determining whether a fair balance was struck between the relevant interests, it is necessarily the Court’s task to conduct the Article 8 proportionality assessment afresh (see also Ndidi, cited above, § 76). On the contrary, where those courts have carefully examined the facts and adequately balanced interests in play, applying the relevant human rights standards consistently with the Convention and its case-law, it is not for this Court to substitute its own assessment of the merits, except where it is shown that there is strong reason to do so. This reflects the principle of subsidiarity, which assigns to the competent authorities of the Contracting States – in this case the courts – the primary responsibility to secure respect for Convention rights, the jurisdiction of this Court being supervisory in nature (see the seventh paragraph of the Preamble to the Convention, added by Protocol No. 15 on 1 August 2021).

81.  Given the course of the domestic proceedings, it is the reasoning of the judgment of the High Court of 30 May 2019 that must above all be considered. As a preliminary remark, it should be clarified that there has been no doubt raised in this case, even indirectly, about the independence and impartiality of the High Court. Nor was it suggested that its consideration of the facts of the case was incomplete.

82.  As for the application of relevant human rights standards consistently with the Convention and the relevant case-law principles – which have been set out extensively above –, the Court refers to paragraph 27 of the High Court judgment, stating that the right approach was not to examine whether the Minister had incorrectly weighed the various relevant factors, but instead to determine whether the applicant could identify “some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense.” Proceeding in this way, the High Court did indeed consider the various arguments raised by the applicant relating to the proportionality of the deportation order, rejecting each in turn. In so doing, it had regard to one judgment of this Court that was relied on by the applicant – A.A. v. United Kingdom (cited above) – pointing to certain factual differences between the two cases. Its conclusion was that the applicant had failed to establish any flaw or failure on the Minister’s part that could support the conclusion that the deportation order was unreasonable or irrational.

83.  The Court has difficulty in accepting that the approach that was taken by the High Court either reflects or corresponds in substance to a sufficient degree to what is contemplated in the well-established case-law set out above (see Otite v. United Kingdom, no. 18339/19, §§ 44-45, 27 September 2022, and compare with Alleleh and Others v. Norway, no. 569/20, §§ 94-107, 23 June 2022). While it recognises that in the domestic legal system the decision to deport a non-national belongs to the realm of the executive, the courts having a supervisory jurisdiction with the power to quash a decision but not to substitute it, it cannot be said that in the domestic proceedings in the present case the review was carried out in light of all the relevant principles of Article 8 of the Convention and its case-law as regards settled migrants. It follows that for the purposes of giving the final ruling on the merits of the applicant’s claim, it is now for the Court to make its own assessment of the proportionality of the measure interfering with the applicant’s right to respect for private life in Ireland.

84.  Commencing with the degree of the applicant’s integration in Ireland, the Court notes that he arrived there as a child of seven in 2001, had permission to remain in the State until 2014, a period of 13 years. He continued to live there until mid-2019, although this was not lawful residence. By the time he left the country, he had spent much the greater part of his life there. It can be said that he mostly grew up in Ireland, receiving the bulk of his schooling there. He also commenced his current profession there, although he could not actually be hired as a professional player – or take up any other employment – in light of his irregular immigration status from 2014 onwards. The applicant’s relations with the members of his family and with his girlfriend are also to be reckoned here as forming part of his “private life”. In view of these elements, the Court accepts that the applicant’s ties in Ireland – social, cultural and personal – were relatively strong from the time he was notified of the Minister’s intention to deport him through to the point in time that he left the State. Given, however, that he has in the meantime made his home elsewhere so as to pursue his profession, which is also an aspect of private life, it has to be considered that the strength of his ties to Ireland has since diminished.

85.  The question of the applicant’s links with Nigeria was at issue at the domestic level, and the applicant also raised it before the Court. However, it is a factor that can no longer be considered relevant, given the applicant’s voluntary relocation to Vietnam in 2019.

86.  Weighing against the applicant are the nature and seriousness of the criminal offences he committed. This refers above all to the sexual offences committed in 2010 by the applicant. These are indisputably serious criminal matters, notwithstanding the fact that the applicant was 16 years old at the time. While the applicant has made an argument about the scope of the offences in domestic law, and the unavailability of a defence of consent where the victim is a child, the Court will focus on the sentence that was passed on the applicant as the prime indicator of the gravity of the offences actually committed, along with the comments made in court at the time of sentencing. As already indicated (see paragraph 8 above), the judge referred to the seriousness of the offences and the concerning nature of the sexual activity that had taken place, as well as to the very negative impact on the victim. He noted the assessment that had been made regarding the risk of the applicant reoffending and expressed concern that even after four years – and by that stage an adult – the applicant had still not grasped how seriously the victim had been affected. The Court notes that the sentence imposed was the maximum one provided for in relation to the offence of attempted defilement of a child under the age of 17 (section 3(2) of the Criminal Law (Sexual Offences) Act 2006 – see paragraph 43 above). The same sentence was applied concurrently for the offence of sexual assault. While these sentences were suspended, the Court notes that this was on account of the considerable delay that had occurred in the criminal process rather than any element of mitigation. The period for which the sentences were suspended, which at three years appears lengthy, reflected the judge’s concerns at the attitude of the applicant at the time the case came before that court.

87.  In light of the above factors, the Court agrees with the Government that, given their nature and gravity, the offences committed by the applicant cannot be categorised as acts of juvenile delinquency. In particular, it is sensitive to the fact that the victim was a younger girl, who endured several sexual assaults by several youths that took a heavy toll on her. The Court recalls here that in its case-law it has treated sexual offences committed against minors as a sufficiently serious form of ill-treatment to come within the scope of Article 3 of the Convention (see O’Keeffe v. Ireland [GC], no. 35810/09, § 153, ECHR 2014 (extracts)).

88.  The applicant placed emphasis on his age at the time the sexual offences were committed and referred to the statement in the Court’s case‑law about the relevance of the principle of the best interests of the child. Indeed, the Court has said that where offences committed by a minor underlie an exclusion order, regard must be had to the best interests of the child, meaning for the State an obligation to facilitate the reintegration of juvenile offenders. It would be at odds with this aim of reintegration to expel juvenile offenders, severing their family and social ties in the process (see Maslov, §§ 82-83). However, it finds that this consideration is not relevant to the circumstances of this case. This is because the sexual offences committed by the applicant were not the only elements taken into account, although it appears they were the weightiest element against him. Rather, these offences were considered in conjunction with the traffic offences committed by the applicant when he was aged 20, which are examined below. Moreover, given that this case has been brought by a man now aged 28 and that the impugned interference is not deportation from the State but the ban on the applicant returning that has been in force for the past three years, it would be artificial to analyse his complaint in light of the principle of the best interests of the child, or to suggest that the respondent State is under a duty to reintegrate him into Irish society.

89.  In the domestic proceedings and again before this Court the applicant made the argument that it had been unjustified for the Minister to count against him the fact that he did not engage in any form of rehabilitative activity in relation to the sexual offences. As noted above, the sentencing judge placed the applicant under supervision for a period of a year. It does not appear that the applicant was required to engage in any form of activity during that time. Having regard to how it has characterised the interference in this case, the Court does not find this matter to be of relevance to its proportionality assessment.

90.  The Court must also assess the nature and seriousness of the traffic offences committed in 2014. Addressing this point, the High Court noted that in another case the Supreme Court had considered that the Minister was entitled to treat the offence of driving with no insurance as a serious matter. In their submissions the Government described the offence as one that is considered to be “relatively significant” and referred to the maximum penalties provided for by law (see paragraph 45 above). They added that the court also has the power to apply five penalty points to the offender’s licence, or to issue a driving ban (2 years or more for a first offence; 4 years or more for a second offence committed within three years of the first).

91.  While the Court can readily agree with the Government on the importance of compliance with traffic laws as a matter of public safety, and notes that domestic law provides for quite serious sanctions, here too it will have regard to the sentence actually imposed in order to apprehend the seriousness of the offences committed by the applicant. It notes that the fine was at the low end of the scale (300 euros, compared to a maximum of 5,000 euros) and that no other sanction was applied. Nor was there a separate penalty for the offence of driving on a motorway without a full licence. It cannot therefore be said that these offences were actually treated as being of a serious nature.

92.  The High Court considered it a misconception on the applicant’s part to suggest that consideration of the risk of his reoffending had to be limited to sexual offences. Indeed, such a suggestion does not find support in the Court’s case-law. However, the Court would clarify that the mere fact that an individual has broken the law a second time does not automatically suffice, without more, to conclude that the person concerned displays criminal propensities to a degree that represents a real threat for society. Rather, the assessment must also take into account the nature and gravity of such offence(s).

93.  While the traffic offences, per se, were not treated as serious criminal matters, there is an additional element to consider, which is the applicant’s immigrant status when he was apprehended, i.e., in July 2014. At that point in time, he was no longer legally resident in Ireland, his permission to remain in the State having expired in March of that year. As he had been informed in 2011 when he was given permission to remain for three years, that was conditional on his complying with Irish law in every respect. Furthermore, his criminal law status is also relevant. The proceedings against him were still before the courts at that time and he faced a real prospect of a term of imprisonment. In the event, the sentence was suspended, subject to his being of good behaviour for the following three years. Had the traffic offences been committed post-sentence, their gravity might well have been assessed very differently, with more serious consequences for the applicant. These considerations, which weigh against the applicant, are not to be ignored in the assessment of the nature and seriousness of the second set of offences. Indeed, they tend to support the view expressed in the INIS analysis in 2017 that the applicant’s behaviour showed a continued disregard for the laws of the State.

94.  It is true that after July 2014 the applicant did not commit any further offences. Thus, by the time he left the country he had been of lawful conduct for close to five years.

95.  It is the well-established case-law of the Court that the domestic authorities are to be allowed a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 is necessary in a democratic society and proportionate to the legitimate aim pursued. At this stage of its own assessment, the Court is already in a position to take the view that the balance struck by the Minister between the applicant’s private life interests, i.e., the totality of his social ties to Ireland while he still lived there, and the aim of preventing disorder or crime, fell within an acceptable margin of appreciation and therefore cannot be regarded as unfair.

96.  However, there are two further aspects of the applicant’s complaint that the Court must still consider. First, as stated above, the form of the impugned interference is the prohibition on the applicant’s return to Ireland. The duration of such exclusion is an element to which the Court has given importance in its case-law.

97.  In this regard, the Court notes that the power of the Minister under section 3(1) of the Immigration Act 1999 is to order a non-national to leave and to remain “thereafter” out of the State. Thus, under domestic law a deportation order is of indefinite duration, there being no provision for the Minister to set any specific limit in time to it. However, in view of the power conferred on the Minister by section 3(11) of the same Act to revoke a deportation order, it does not appear correct to generally characterise such an order as being of lifelong duration, as argued by the applicant.

98.  The Government stressed in this respect that the Minister could, in her discretion, bring the deportation order to an end at any time were she to consider it appropriate to do so. They further referred to the description of the operation of the provision by the Supreme Court in the Sivsivadze judgment (see paragraph 51 above), according to which the Minister’s power is not limited to situations in which there has been a change in the circumstances of the person deported or other persons affected. The applicant referred to the Supreme Court’s P.O. judgment (see paragraph 52 above) as authority for the view that section 3(11) contemplates the submission of new material by the person concerned, not material already presented and taken into consideration.

99.  To the extent that these judgments might be understood as divergent, it is not the Court’s role to prefer or approve one over the other. It would observe that any ambiguity about whether the person concerned is or is not required to show a change in their circumstances might well have been cleared up had the applicant made a request to the Minister to revoke the deportation order. This he did not do, although it was open to him to do so at any time. Indeed, it remains open to him to do so. Accordingly, the issue of the ultimate duration of the deportation order does not affect the Court’s finding that the decision to deport the applicant fell within the margin of appreciation of the domestic authorities.

100.  The other – and final – aspect of the applicant’s complaint that the Court must consider is his contention that the Minister had wrongly taken account of criminal acts committed by others. Here it suffices for the Court to note, as did the High Court, that it is clearly stated in the analysis that only the offences for which the applicant was convicted were taken into account.

101.  For the reasons set out above, the Court concludes that there has been no violation of Article 8, in the particular circumstances of this case.

ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

102.  The applicant complained that there had been no effective remedy available to him, contrary to Article 13, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The parties’ argumentsThe Government

103.  The Government submitted that the applicant had not raised this complaint before the domestic courts. Domestic remedies had not therefore been exhausted with respect to either limb of the complaint.

104.  The Government further submitted that the requirements of Article 13 had been satisfied. They stated that where an individual relies on their rights under Article 8 of the Convention, the domestic courts will have regard to the subject-matter and consequences of the impugned decision and will subject the materials which were before the decision-maker to particularly careful and thorough review. As was done in relation to the applicant, the reviewing court will scrutinise the adequacy of the reasons given, in view of the particular facts of the case, and assess the legality and reasonableness of the decision, including its proportionality, having regard to the individual’s constitutional and Convention rights. Where it is established that there has been an error of law and/or fact, or a breach of fair procedures, the impugned decision can be quashed. The Supreme Court had confirmed in the Meadows case that the remedy of judicial review was capable of allowing an assessment by the courts of the proportionality of an administrative decision affecting individual rights. Similar criticisms made against the allegedly limited scope of the remedy provided for under the Illegal Immigrants (Trafficking) Act 2000 had been considered and rejected by the Irish courts. In view of these developments of the past decade, it was all the more problematic that the applicant had failed to raise this issue when he had been before the domestic courts.

105.  Referring to the second limb of the applicant’s complaint, about the procedural rules governing appeals, the Government submitted that the requirement to make an effective remedy available was in any event fully satisfied by the availability of judicial review of the deportation order. The applicant could not claim in addition a right of appeal. The Supreme Court had been entitled to conclude that the applicant’s case did not meet the threshold for granting leave to appeal against the decision of the High Court.

The Applicant

106.  The applicant maintained that he had in fact raised this complaint before the High Court. He further argued that the remedy that had been available to him – an application for judicial review – was not effective in that it allowed only limited scope for judicial scrutiny of the deportation order. As a matter of domestic law, the High Court was prevented from conducting a proper review of the proportionality of the impugned order. Instead, it was limited to ascertaining whether the applicant had shown the order to be unreasonable or irrational. He further complained that the Illegal Immigrants (Trafficking) Act 2000 unduly restricted the possibility of bringing an appeal against a refusal of judicial review by the High Court; for an appeal to proceed the same judge had to certify that the decision involved a point of law of exceptional public importance and that it was desirable in the public interest that leave to appeal be granted. The High Court had refused to do so, and the Supreme Court had refused leave to appeal, meaning that he had ultimately been denied an effective remedy.

The Court’s assessment

107.  There is no need for the Court to rule on the Government’s objection of non-exhaustion of domestic remedies, since it finds that this complaint is inadmissible in any event for the following reasons.

108.  The Court has established in its case-law that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, among many others, Mugemangango v. Belgium [GC], no. 310/15, §§ 130-131, 10 July 2020).

109.  The question to answer in this case is thus whether the remedy that was available to the applicant – an application for judicial review – was one that could deal with the substance of his complaint and, where justified, grant him appropriate relief. The substance of the complaint was that the deportation order represented a disproportionate interference with the applicant’s rights. The Court considers that, taking account of the case-law of the superior domestic courts, judicial review was indeed capable of dealing with such a complaint. It refers in particular to the judgments that were given by Murray C.J., Denham J and Fennelly J in the Meadows case, affirming that an administrative decision may be set aside by a court where it is shown that it affects the rights of the individual concerned in a disproportionate manner (see paragraphs 46-48 above). It further notes the subsequent High Court judgments, cited above, affirming the compatibility of the domestic system in this respect with the Convention and the case-law of this Court (see paragraphs 49-50 above).

110.  In his submissions the applicant argued that what the High Court had done in his case was to essentially apply the “Wednesbury” test (according to which judicial review can be granted in relation to an administrative decision only where such decision is shown to be so unreasonable that no reasonable decision maker could have ever come to it), as refined by the Keegan and O’Keeffe case-law. It does not appear to the Court that this is a correct characterisation of the reasoning of the High Court. On the contrary, that court was mindful of the issue of the effectiveness, with respect to the substance of the applicant’s claim, of the remedy being sought. At the end of the judgment, and for the sake of completeness, it affirmed, on the strength of the relevant domestic case-law, that judicial review would represent an effective remedy in his case (see paragraph 29 above).

111.  It follows that this complaint must be deemed manifestly ill‑founded and be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Declares the complaint concerning Article 8 admissible and the remainder of the application inadmissible;Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 9 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Mārtiņš Mits
 Deputy Registrar President

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