Brazilian man refused leave to challenge deportation order

A Brazilian man living here illegally for years after his visitor’s visa expired has been refused leave to challenge a deportation order on grounds he should be allowed to stay because others also here illegally for years have been let remain.

The man came here in late 2007 on a visitor’s two-week visa. He has been in a relationship with an Irish woman for several years and in 2012 sought leave to remain based on that “de facto relationship”.

After he was refused and a deportation order for him was made last July, he and his partner sought leave for judicial review.

He argued he knew many other foreign nationals here, including other Brazilians, who got permission to remain despite having been here unlawfully for more than five years. In such circumstances, he and his partner believed he too would get permission to remain, he said.

‘Flagrant disregard’

Refusing leave, Mr Justice Richard Humphreys said the essential ground of this application was that the man has not been given the benefit of a "policy" made available to many others in a position similar to him.

That did not amount to the required “substantial” ground for judicial review, the judge said. The fact many illegal immigrants may or may not have been given permission to stay “does not give any entitlement to the next illegal immigrant”.

The fact his primary point amounted to saying his “flagrant disregard” of the State’s immigration law for more than a decade should be counted in his favour did not enhance the man’s application, the judge said. Such conduct breached fundamental unenumerated constitutional duties to comply with the law and uphold the integrity of the State’s borders.

Other grounds, including based on the man’s right to a private life under article 8 of the European Convention on Human Rights, did not constitute substantial grounds for leave to challenge deportation. These were matters for the Minister to consider unless some illegality was shown and none was demonstrated in this case.

As many court decisions have established, the article 8 rights of a person whose position is “precarious” are minimal or non-existent, the judge added.