CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 mars 2023

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display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     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 PROVISIONS Immigration 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-LAW Judicial 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. Merits The 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