An Indian student has been granted leave to seek a High Court challenge to a suspended sentence imposed on him in the Circuit Court on condition he leave the country.
Harminder Singh of Ballykelly, Newcastle, Co Dublin, claimed Circuit Court Judge Patrick McCartan was effectively deporting him by imposing the condition.
A High Court judge said the case raised 'serious concerns' about the lawfulness of such decisions.
Mr Singh claimed Judge McCartan showed bias when he commented that he had 'worn out his welcome in this jurisdiction'.
Lawyers for Mr Singh sought leave to challenge the decision on a number of grounds.
They claimed the judge had acted beyond his powers by ordering as a condition of the suspended sentence that Mr Singh leave the country.
The court heard that Mr Singh pleaded guilty to assaulting a fellow national and was sentenced on 26 May last.
An 18-month sentence was imposed but was suspended on condition he return to India.
An extension was given to allow him time to sit exams but he was required to leave by tomorrow, the court heard.
His lawyers said he had been living and working here on a student visa for the past four years and this visa was not due to expire until September next.
They claim the judge was 'treading on the executive function of deportation' by making it a condition of the sentence that he leave Ireland.
They also claimed there was no evidential basis for the comments made by the judge about his welcome in this jurisdiction having evaporated.
The assault was an isolated incident and to suggest that the Irish people no longer wanted him here was a conclusion not open to the judge to reach, the court was told.
It was also claimed the sentence was passed before an interpreter had arrived in court.
Mr Justice Gerard Hogan refused leave to seek judicial review on two of the three grounds submitted.
He said the comments by the judge did not amount to objective bias, adding that some licence had to be allowed to a Circuit Court judge dealing with serious criminal matters in the observations he makes.
He said the judge was entitled to make the comment that someone here on a student visa (who is convicted of a crime)
has overstayed their welcome.
has overstayed their welcome.
He also refused leave on the ground that an interpreter was not present.
However, he said the requirement that the defendant leave the country as a condition of sentence was a matter that raised serious concerns about whether it was lawful for a sentencing judge to impose any conditions of this kind.
Therefore, the judge said he would grant leave to seek judicial review and adjourned the case to 2 July next.
Source: RTE News Ireland
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