A SOUTH AFRICAN man, jailed for possession and sale of drugs, has lost a legal challenge in the High Court against a deportation order that will send him home while his two Irish-born children remain in Ireland.
Mr Justice Richard Humphreys said the applicant and his wife, who is also South African, married in their home country and came to Ireland in the late 1990s. They had two children in the State.
The man had applied for and was refused refugee status and lost an appeal against the decision but had been granted leave to remain on the basis of being the father of an Irish citizen child.
He had made two applications for a certificate of naturalisation which had both been refused.
The judge said the man, who cannot be identified for legal reasons, was then convicted of the drug related offences following a trial by jury and had been imprisoned.
The man had later been granted enhanced remission of sentence by Justice Minister Frances Fitzgerald who had already issued a “proposal” to deport him. The deportation order was formally made against him later.
Judge Humphreys said the man had legally challenged his deportation claiming the Justice Minister’s decision to deport him was in contradiction with the fact that she, through the Irish Prison Services, had granted him enhanced remission in “recognition of a reduced risk of re-offending and in recognition of his efforts at rehabilitation”.
The judge said the Minister had based her deportation order on a series of reasons including the seriousness of the man’s offence and his failure to acknowledge responsibility for it as he had maintained his innocence, contending there had been a miscarriage of justice.
The decision to deport him had also been based on the possibility that the economic difficulties caused by his conviction and imprisonment would create a potential for future criminality, making him a burden to the State.
Judge Humphreys said it was legitimate for the State to take a hard line in respect of deportation of offenders convicted on indictment but it was not too much to ask that before a prisoner was afforded a rehabilitative benefit some step would be taken to ascertain formally if he or she accepted responsibility for the offence.
“Nor is it too much to ask that before a non-national prisoner is released, some inquiry is made within the same Department as to what his fate is in terms of deportation,” the judge said.
The man, a father of two Irish citizens, had also claimed that his children should not be “punished for his sins”. The judge said that such a proposed rule of law would be “a jurisprudential Indian rope trick” where a rope was suspended in the air without any visible means of support.
“Sentiments of sympathy for affected children are all well and good but such sentiments do not warrant a transfer to the judiciary of the function of making executive decisions,” he said.
No error in the process of assessment of proportionality had been demonstrated and serious offending required serious consequences. Deportation had been a civil consequence of the applicant’s offending behaviour.
“It is a shame that the applicant will now be separated from his family but he should have thought about their rights and interests prior to his offending behaviour,” the judge said, dismissing the man’s application.
“The material submitted to the Minister does not clearly set out why the family could not move to South Africa as a unit,” he said.
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