H & anor v The Minister for Justice & Equality (Approved)

Factual and Procedural Background

Two Pakistani nationals—an adult mother and her minor daughter (together, the Appellees)—moved from the United Kingdom to Ireland in July 2014 with the mother’s brother (the Relative), an EU citizen. In May 2015 the Appellees applied for EU1 residence cards on the basis that they were permitted family members of an EU citizen. The Appellant, the Minister for Justice and Equality, refused the application in November 2015 and affirmed that refusal on review in February 2017, simultaneously issuing notices of intention to deport pursuant to s 3 of the Immigration Act 1999.

After an 18-month interval, deportation orders were signed on 24 August 2018 and notified on 5 September 2018. The Appellees sought judicial review. On 22 July 2020 the High Court (Judge Barrett) quashed the deportation orders on several grounds, while also criticising the 18-month delay. The Appellant obtained leave for a “leap-frog” appeal to the Supreme Court limited to the delay issue. The Supreme Court (Judge Charleton delivering judgment) handed down its decision on 11 May 2021.

Legal Issues Presented

1. Whether the 18-month delay between the notification of the proposal to deport and the making of the deportation orders formed part of the High Court’s ratio decidendi.
2. Whether such delay, by itself, breached constitutional rights and/or rights under the European Convention on Human Rights (ECHR).
3. Whether the Charter of Fundamental Rights of the European Union applied, and if so, whether the delay breached Charter rights.
4. Whether the delay, standing alone, vitiated the deportation orders.

Arguments of the Parties

Appellant's Arguments

• The Appellees were unlawfully in the State from the outset; the deportation orders merely responded to that illegality.
• Delay cannot confer a right to remain; the High Court’s contrary suggestion was an unwarranted innovation.
• Article 8 ECHR is not breached by administrative delay alone; States retain sovereignty over immigration control.

Appellees' Arguments

• The High Court quashed the deportation orders on grounds unrelated to delay; comments on delay were therefore obiter.
• Nevertheless, excessive delay undermines Articles 40, 41 and 42A of the Constitution, Articles 6 and 8 ECHR, and Articles 7, 41 and 47 of the EU Charter.
• Procedural fairness requires timely, transparent decisions; prolonged uncertainty caused tangible stress and prejudice.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court confined itself to the single certified issue: whether administrative delay, of itself, confers a right to remain. Judge Charleton reasoned as follows:

• Unlawful presence remains unlawful. Citing FP v Minister for Justice, the Court reaffirmed that, absent statutory entitlement, a non-national’s presence without permission is illegal regardless of administrative lapse.
• Delay is analytically distinct from rights. Drawing on E.B. (Kosovo) and ECtHR jurisprudence, the Court held that delay may strengthen proportionality arguments or justify mandamus, but it does not itself generate substantive immigration rights.
• Constitutional analysis. Articles 40, 41 and 42A protect specific familial relationships; the sibling and uncle-niece relationship in this case is not of constitutional dimension, and even if protected, would not override the State’s sovereign control of borders.
• ECHR analysis. Article 8 does not oblige a State to regularise a precarious status created in full knowledge of its impermanence; cases such as Ahmut, Gül and Nnyanzi confirm this.
• EU Charter. The Charter applies only when a Member State is implementing EU law; even if applicable, no Charter provision converts delay into residence rights.
• Appropriate remedy for delay. Where executive inaction is excessive, the correct relief is mandamus compelling a decision, not automatic grant of residence.
• Character of High Court remarks. The Supreme Court characterised Judge Barrett’s observations on delay as obiter; the deportation orders were quashed on unrelated grounds that were not appealed.

Holding and Implications

HELD: Administrative delay in issuing a deportation order does not in itself create a right to remain in the State. The High Court’s deportation order quashing remains undisturbed because the Appellant did not challenge the substantive grounds on which it was set aside.

Implications: The decision clarifies that, in Irish immigration law, delay may inform proportionality or ground mandamus but cannot transmogrify an unlawful presence into lawful residence. Practitioners must therefore seek procedural remedies (e.g., mandamus) rather than argue that delay alone confers status. No new precedent is created regarding the Appellees’ ultimate entitlement; their fresh residence-card application remains for the Appellant to determine in accordance with EU free-movement rules.