Any person who is present in the State without permission is at risk of being expelled. Depending on the circumstances of the person, this can take place either under domestic law (deportation under s. 3 of the Immigration Act 1999) or under EU law (removal under Directive 2004/38/EC).
Removal of a non-EEA national ordinarily takes place under domestic law, pursuant to s. 3 of the Immigration Act 1999. Under this provision, the Minister has power to make a deportation order. Before doing so, the Minister must issue a proposal to deport, which gives the recipient three options. It is essential that any proposal to deport is legally correct. If it is not then a deportation order made on foot of it will also be incorrect and can be challenged by way of Judicial Review. We provide expert advice in relation to this and can assist with any challenge to a legally incorrect proposal to deport.
One of the options open to a person issued with a proposal to deport is to make representations, within 15 days, as to why a deportation order should not be made. In considering any such representations, the Minister is required to consider a number of statutory factors, including any ‘humanitarian’ issues arising. A decision on these factors is at the discretion of the Minister. Along with these discretionary factors, where the making of a deportation order would result in a breach of rights, either under the Constitution or the European Convention on Human Rights, the order cannot be made. We provide specialist and expert legal advice in relation to whether such rights arise and will be breached upon the making of a deportation order, and can make representations on your behalf. Where the Minister decides not to make a deportation order, leave to remain will be granted. The nature of the permission currently being granted is a Stamp 1 permission without the need for a work permit.
A person issued with a deportation order can be required by the Minister to ‘present’ on a specified date and time. Contravention of a deportation order can result in a person being liable for arrest and detention. However, any such detention must be legally correct and if it is not then it can be challenged under Article 40 of the Constitution. We provide advice in relation to this and can assist with a legal challenge to any unlawful detention.
Once a deportation order is made it is without limitation unless revoked. This means that a person who has a deportation cannot re-enter the State while the order still exists. An application for revocation of the deportation order can be made under s. 3(11) of the Immigration Act 1999, and we can assist with this. However, ordinarily any such application will only be successful if a change of circumstances since the time the order was made can be demonstrated. If a breach of rights arises as a result of the continuation of the order then the order must be revoked. We provide expert legal advice in relation to this, and can make representations to the Minister seeking revocation of an order where a breach of rights arises.
Certain non-EEA national family members of EU citizens who have exercised EU Treaty Rights in the State can only be removed from the State by way of a Removal Order under Article 15 of Directive 2004/38/EC. A Removal Order made under this provision is limited, which means that once it has been affected, it does not continue. It is therefore not necessary to seek to have the order revoked once it has been implemented. In certain circumstances, this means that a person removed by way of a Removal Order under Article 15 may be free to re-enter the State. We can advise in relation to this. If the person is a visa required national, it will still be necessary to obtain this.
The process for making removal orders under Article 15 has not yet been implemented by the Minister. We can provide expert legal advice in relation to whether you are a person who can only be removed by way of Removal Order under Article 15, rather than pursuant to s. 3 of the Immigration Act 1999. If you come within this category, we can make representations on your behalf, pending implementation of an Article 15 removals process.
An EU citizen who is exercising EU Treaty Rights in the State can only be removed by way of Removal Order under Article 27 of Directive 2004/38/EC on very particular grounds, including the personal conduct of the EU citizen. This conduct must reach a particular threshold to allow for the order to be made. We can provide expert legal advice in relation to Removal Orders made under Article 27 against an EU citizen and can assist in relation to a challenge to a Removal Order in appropriate cases.