Deportation Orders

Cases

 

X v Minister for Justice

[2010] IEHC 446

JUDGMENT of Mr. Justice Hogan delivered on the 10th December, 2010

1. In these proceedings the applicants seek to quash a decision of the Minister dated 29th September, 2009, whereby he refused an application to permit the second and third named applicants (who are respectively the mother and sister of the first named applicant) to enter and reside in the State in accordance with the provisions of the Refugee Act 1996 (“the 1996 Act”).

2. The applicants are all Somalis. The first applicant, Ms. RX, arrived in Ireland in September, 2004 and was granted refugee status here in January, 2006. She subsequently applied to the Minister for travel visas for her three children and her mother, Ms. QMA and her sister Ms. CA in accordance with s. 18 of the 1996 Act. As it happens, I need not concern myself now with the situation of the three children. Their application was originally refused in December, 2008, but following DNA testing, the Minister ultimately acceded to this application following an internal review of the original decision. Two of the children now reside in Ireland with their mother and the other has moved to Sweden where she resides with an aunt.

3. Turning now to the position of the other family members, their application was originally refused by a decision dated 8th December, 2008. Among the reasons given bearing on the position of the mother and the sister was that:

“….you have provided insufficient and unsatisfactory evidence of dependency;
you have failed to establish that QMC and CXM are suffering from a mental or physical disability to such an extent that it is not reasonable to maintain themselves fully….”

4. On 11th March, 2009, the applicants’ solicitor wrote to the Minister seeking an internal review of this decision. Documentation was then supplied to show that the mother was suffering from depression, stress, left eye poor vision and anxiety neurosis. In April, 2009 a further medical report was sent which apparently showed that the mother’s condition had deteriorated significantly to the point that she was now blind in her left eye and had poor vision in her right eye, was suffering from depression and had difficulty walking due to rheumatism. The report concluded by stating that the mother was advised:
“to continue medication regularly, have follow up every month and needs a close family support to take care of her grandchildren and she is unable to support herself and her children and operation for her eye.”
5. On 3rd April, 2009, the Minister had undertaken to review this original decision. The applicant’s solicitor then supplied the Minister with a range of further information to assist the decision-making process. This included birth certificates for the children, sister and mother and, as we have just seen, further medical certificates in respect of the mother’s medical condition.
6. The Minister very fairly agreed to bear the costs of the DNA testing of the children. These tests confirmed that the first named applicant was indeed the mother of the children and once this information was communicated to the Minister in November 2009, the appropriate visas were then issued by our Embassy in Addis Ababa.

7. So far as the mother and sister were concerned, however, matters had already come to a head with a letter from the Minister to the applicants’ solicitors dated the 29th September, 2009. Insofar as the applications of C.X.M. and K.M.A. were concerned, the letter merely stated that:-

“Having considered all of the documentation and submissions made on behalf of the applicant, I decided to uphold the Minister’s original decision not to grant family reunification to C.X.M. and K.M.A.”
8. I pause here to observe that it was common case between the parties that no reasons were given for this particular decision. In this case, nothing turns on this because, as it happens, however, the Minister wrote a further letter on 1st October, 2009, which did, in fact, advance reasons for the decision:
“Having taken all of the submissions made on behalf of the applicant and the supporting documentation submitted into account, I am of the opinion that the applicant is not in a position to support the family members applied for or that they qualify as dependent family members under s. 18(4) of the Refugee Act 1996.
I have concluded, therefore, that the Minister should not exercise his discretion, pursuant to s. 18(4) of the Refugee Act 1996, to grant permissions to the subjects named above to enter and reside in the State and that the decision not to grant family reunification should be upheld.”

9. The net issues which arise in this application for judicial review are, accordingly, first whether the reasons given in the letter of the 1st October, 2009, are sustainable and, second, if they are, did the Minister have jurisdiction to conduct an internal review of the original decision having regard to the structure of s. 18(4) of the 1996 Act, especially in the light of the judgment of the Supreme Court in Izevbekhai v. Minister for Justice, Equality and Law Reform [2010] IESC 44. I propose presently to consider these questions in turn.
Section 18 of the 1996 Act
10. The relevant statutory provisions may conveniently be described and set out at this juncture. In a case where an applicant has been given a declaration of refugee status, s. 18(1) provides that person may apply to the Minister for permission to be granted:

“to a member of his or her family to enter and to reside in the State and the Minister shall cause such an application to be referred to [Refugee Applications] Commissioner.”
11. Section 18(2) requires the Commissioner to investigate the application and to prepare a report for the Minister. It further requires that the report shall set out the relationship between “the refugee concerned and the person the subject of the application and the domestic circumstances of the person.” Where the Commissioner is satisfied that the person the subject matter of the application is a “member of the family of the refugee”, then, subject to considerations of national security or public policy, the Minister is obliged to grant that person permission to enter and to reside in the State: see s. 18(3)(a). Section 18(3)(b) defines “member of the family” for this purpose as a spouse and minor children and, where the refugee is himself or herself a minor, his or her parents. It will thus be seen that the Minister had no discretion at all in the case of the first named applicant’s children, once the parentage and identity of those children was established by the DNA tests.
12. In addition, however, to s. 18(3), s. 18(4) also permits the Minister to exercise a discretion in the case of other family members who would not otherwise come within s. 18(3). Section 18(4) of the 1996 Act provides:

“(a) The Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State and such member shall be entitled to the rights and privileges specified in section 3 for such period as the refugee is entitled to remain in the State.
(b) In paragraph (a), “dependent member of the family”, in relation to a refugee, means any grandparent, parent, brother, sister, child, grandchild, ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully.”

13. It will be thus seen that it is s. 18(4) which governs the application of the mother and the adult sibling.
Whether the Minister had the power to conduct an internal review
14. Although the Minister agreed to conduct an internal review of the original decision of December, 2008 to refuse to agree to family reunification, the argument now advanced by Mr. Conlan Smyth is that, in the light of the Supreme Court’s decision in Izevbekhai, there was in fact no vires to conduct such an internal review. There is admittedly something unusual – perhaps even unattractive – when a public body later argues that it had no jurisdiction to engage in the course of action it had earlier embarked on, but as the law now stands there can be no estoppel as against a statute: see the comments of Re Green Dale Building Co. Ltd. [1977] I.R. 256 at 264-265. In this regard, therefore, the fact that the Department had by its own conduct led the applicants to believe that such a jurisdiction is, therefore, irrelevant as a matter of strict law, since in view of the Supreme Court’s decision in Green Dale Building Co, the doctrine of promissory estoppel has no application. We must, therefore, turn to the question of what Izevbekhai actually decided.

15. In Izevbekhai the court held that the Minister had no jurisdiction to consider an application for subsidiary protection in respect of persons who were the subject of a deportation order made before the 10th October, 2006, the operative date so far as the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). In his judgment for the court, Fennelly J. stressed the interlocking nature of Regulation 3, Regulation 4(1) and Regulation 4(2) of the 2006 Regulations.

Regulation 3 provides:

“3. (1) Subject to paragraph (2), these Regulations apply to the following decisions (in these Regulations referred to as “protection decisions”) made on or after the coming into operation of these Regulations:
(a) a recommendation under section 13(1) of the 1996 Act;
(b) an affirmation under paragraph (a) or a recommendation under paragraph (b) of section 16(2) of that Act;

(c) the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates;

(d) a determination by the Minister under Regulation 4(4) or 4(5).”

16. In respect of this provision, Fennelly J. noted (at paragraph 52):
“For the purposes of the present appeal, only paragraph (c), relating to a proposal to make a deportation order, is relevant. The intention is clear: in future, that is from 10th October 2006, every subject of a deportation order which the Minister proposes to make after that date is guaranteed the right to make prior representations to the Minister that he or she runs the risk of exposure to serious harm if deported to the country of origin. On the other hand, persons against whom deportation orders have been made and notified, though not yet in fact deported are not accorded that right. The paragraph makes no provision for cases of deportation orders made before 10th October 2006, but not yet notified. Section 3(3)(b)(ii) of the Act of 1999 obliges the Minister to “notify the person in writing of his or her decision and of the reasons for it…”
17. Regulation 4 is in the following terms:
“(1) (a) A notification of a proposal under section 3(3) of the Act of 1999 shall include a statement that, where a person to whom section 3(2)(f) of that Act applies considers that he or she is a person eligible for subsidiary protection, he or she may, in addition to making representations under section 3(3)(b) of that Act, make an application for subsidiary protection to the Minister within the 15 day period referred to in the notification.
(b) An application for subsidiary protection shall be in the form in Schedule 1 or a form to the like effect.
(2) The Minister shall not be obliged to consider an application for subsidiary protection from a person other than a person to whom section 3(2)(f) of the 1999 Act applies or which is in a form other than that mentioned in paragraph (1)(b).”
18. These provisions were the subject of a detailed analysis from Fennelly J. who commented (at paras. 55 and 56 of the judgment):
“55. Regulation 4(1) imposes a positive obligation on the Minister, but its area of application is limited to cases of deportation orders which the Minister proposes to make after 10th October 2006…..it makes no provision for deportation orders already made but not notified.
56. ….. the Minister made the three deportation orders in respect of the appellants on 23rd November 2005, which was prior to the coming into operation of the Regulations. He gave notice of these orders on 29th November 2006. Section 3(3) of the Immigration Act, 1999 obliges the Minister to give notice in writing of a proposal to make a deportation order. The appellants were properly notified. Regulation 4(1)(a) of the Regulations applies only to a notification of such a proposal. The wording of that provision is capable of applying only to such notifications given after the coming into operation of the Regulations, i.e. after 10th October 2006.”

19. In passing, I would observe that this analysis lays the foundation for the court’s ultimate conclusion, because Fennelly J. here made it clear that any arguments based on the existence of some residual ministerial discretion would be inconsistent with the overall structure of the Regulations. This is, in any event, put beyond any doubt by the following subsequent passages:
“75. In my view, Regulation 3 is crucial and clear in its own terms. It limits the scope of application of the Regulations. It provides that the Regulations “apply to the following decisions,” which it then specifies. For the purposes of the present case, it is crucial that it limits the scope of the Regulations to cases described in Regulation 3(1)(c) where “the notification of an intention to make a deportation order under section 3(3) of the 1999 Act in respect of a person to whom subsection (2)(f) of that section relates” is communicated after 10th October 2006.
76. That limitation is itself closely related to the content of Regulation 4(1)(a) which obliges the Minister to give a specific type of notice to persons to whom he communicates notifications of the kind mentioned on Article 3(1)(c).

77. Leaving aside the question of the scope of Regulation 3, and looking at the wording of Regulation 4(2) itself, one must ask by what words that provision confers on the Minister the discretion to consider applications from persons other than those affected by the decisions listed in Regulation 3, or other than persons expressly entitled to notice from the Minister pursuant to Regulation 4(1)(a).

78. To begin with, it seems obvious that Paragraphs (1) and (2) of Regulation 4 must be read together. Paragraph (1) deals with a notification being given to a person to whom section 3(2)(f) of the Act of 1999 applies. It obliges the Minister to include in that notification notice of the right to make an application for subsidiary protection. Paragraph (2) adds that the Minister is not obliged to consider an application for subsidiary protection from any person other than one to whom that provision applies. The same applies pari passu to the provision regarding persons who have not completed the form provided in Schedule 1 and referred to in Regulation 4(1)(b). This appears to me to be a clear, complete and logical scheme. The three provisions interlock and complement each other.

79. I can find no language in Regulation 4(2) conferring on the Minister, either expressly or implicitly, any discretion to consider applications for subsidiary protection in cases not provided for. The paragraph is negative in form: it says what the Minister is not obliged to do.”

20. Of course, Regulation 4(2) provides that the Minister “shall not be obliged” to consider an application for subsidiary protection by persons not falling within its scope. If the language of Regulation 4(2) was looked at entirely in isolation, one might, perhaps, have been forgiven for thinking that it conferred an implicit discretion. As we have seen, Regulation 4(2) states that the Minister “was not obliged” to consider an application for subsidiary protection from a person not falling within the terms of Regulation 4(1) and, starting from that point, the argument could well be made that while the Minister was under no obligation in that regard, he nonetheless had an implicit discretion to consider such application.
21. Fennelly J. held, however, that Regulation 4(2) could not be read in isolation and that the combined effect of Regulation 3 and Regulation 4 was, in effect , to create an implicitly closed category of cases, so that the Minister could only consider an application for subsidiary protection where the deportation order had been made after the operative date in November, 2006.

22. As Fennelly J. pointed out (at para. 76) the wording of Regulation 4(1)(b) imposed a particular obligation on the Minister to give a particular notification in respect of an application for subsidiary protection to persons the subject to a deportation order after 29th November, 2006. Thus, any interpretation of the Regulations that the Minister retained an implicit discretion in respect of orders made prior to that date would have been inconsistent with the scheme posited by Article 3 and Article 4. The Minister’s discretion with regard to subsidiary protection was made conditional on the notification which was required to be sent to any person who was the subject of the deportation order and that specific notification only applied to deportation orders made after the operative date. That, in my view, is the true ratio of Izevbekhai.

23. Furthermore, it may also be important to note that the Supreme Court was not here addressing any other statutory power. In addition, the court was interpreting Regulations which were designed to transpose a particular Directive. As Fennelly J. explained (at para. 73):

“73. I propose to consider, in the first instance, whether the Regulations confer a right upon persons such as the appellants to apply to the Minister for subsidiary protection. Put otherwise, do the Regulations oblige the Minister to consider such an application for subsidiary protection? It is important to emphasise that these appeals arise solely in the context of the Regulations of 2006 and, to the extent that it is relevant, the Council Directive which they transpose. The appeals are not related in any way to the exercise of any other statutory power, such as that conferred by s. 17(7) of the Refugee Act, 1996….. Nor, it should be emphasised does this appeal concern the exercise through the Minister by the State of the general executive or sovereign power of the State with regard to the admission of persons of other nationality into the State. I will express no views on these matters.”
24. What, then, is the significance – if any – of Izevbekhai so far as the present case is concerned? It would appear to be this: that the courts will not imply any statutory power which would be inconsistent with the statutory scheme. This in itself is not a novel proposition (see, e.g., McCarron v. Kearney [2010] IESC 28 ), although, of course, the application of that principle can – as here – give rise to difficulties.
25. I cannot, however, agree that this means that a statutory power can be exercised once and only once. After all, s. 22(1) of the Interpretation Act 2005 provides that:

“(1) A power conferred by an enactment may be exercised from time to time as occasion requires.”
26. The real question is whether the existence of an internal review would be inconsistent with the statutory scheme, as Mr. Conlan Smyth strenuously contended. To recapitulate, it may be recalled again that each application for family reunification had to be transmitted to the Refugee Application Commissioner who was then required to prepare a report: see s. 18(1) and s. 18(2). If, “after a consideration of a report of the Commissioner submitted to the Minister under subs. (2)”, the Minister is satisfied that the applicant is the spouse or child of a refugee, then the Minister is obliged to grant permission to that person to stay in the State: see s. 18(3). Finally, the Minister has a discretion under s. 18(4)(a) to grant permission to dependent members of the family.
27. If the decision to exercise the s. 18(4)(a) discretion was inextricably intertwined with the referral of the matter to the Refugee Application Commissioner, then, I think, the argument that an internal appeal would be inconsistent with Izevbekhai would be well founded. But is it so intertwined?

28. It is, of course, true that the entire s. 18 process starts with a reference to the Commissioner. The Minister is also required by section 18(2) to consider the Commissioner’s report. But the Commissioner’s report is fundamentally there to assist the Minister’s deliberations. If, for example, the Commissioner’s report were to contain a fundamental error, is to be suggested that the Minister could not receive additional evidence from an applicant to establish something as fundamental as the existence of a family tie? Surely not.

29. In my view, while the Commissioner’s report is an essential starting point, it does not preclude the Minister receiving additional submissions or further evidence. If this is correct, then it follows that, once the Minister has the Commissioner’s report, he can exercise the s. 18 powers from time to time as he sees fit.

30. It follows, therefore, that the Minister did not act ultra vires in conducting an internal review.
Are the reasons given by the Minister sustainable in law?
31. We may now turn to the question of whether the reasons actually given by the Minister are sustainable in law. Before answering that question, it is, perhaps, appropriate to note that this in turn raises the antecedent question of whether the first applicant’s constitutional rights have been potentially affected or engaged by the Minister’s decision to refuse to permit family re-unification. If the answer here is in the affirmative, then this has implications for the adequacy of these reasons: see, e.g., the comments of Murray C.J. in Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3.

32. I would pause here to add that the references in asylum and immigration case-law to Article 8 ECHR have become such a common place, that it is perhaps easy to overlook the fact that even in this area, the ECHR merely supplements or enhances the role of the Constitution. Such is made clear by the Long Title to the European Convention of Human Rights Act 2003, and, in any event, the Supreme Court has confirmed that where there is an overlap between constitutional rights and rights deriving from the Convention, it is the former which, generally speaking at least, must be considered first: see, e.g., Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71. The Convention comes into play only where the Constitution does not provide an adequate remedy in its own right.

33. Certainly in cases involving questions of the constitutionality of a statute or common law rule, s. 5(1) of the European Convention of Human Rights Act 2003, makes it clear that the Convention can only come into play only where it has been established that the Constitution does not provide an adequate remedy in its own right, a point which, in any event, is put beyond doubt by Carmody. But it seems to me that this principle must also apply by analogy where the issue concerns the application of a fundamental right and where the right in question is protected by both the Constitution and the Convention. As Murray C.J. observed in Carmody:

“It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is “subject to the Constitution”.
34. Of course, it is equally scarcely necessary to recall that this Court has long since rejected the argument that fundamental rights protected by the common law could be invoked in order in some way to supersede or qualify the fundamental rights provisions of the Constitution. As Martin Maguire J. said in The State (Walsh) v. Lennon [1942] I.R. 112 at 114:
“The authority of the Constitution enacted by the People is paramount. Its clear provisions must be given effect to even though the rights, or some of them, now asserted were to some extent covered by the Common Law.”
35. The Oireachtas has, of course, decided to give legal effect in the manner contemplated by the 2003 Act to the European Convention of Human Rights in accordance with Article 29.6 of the Constitution. The Convention is, of course, a central feature of the European legal patrimony and the jurisprudence of the European Court of Human Rights serves – among other things – as a salutary warning to the dangers of legal parochialism in matters of fundamental rights. But, as both Murray CJ and Fennelly J. pointed out in McD v. L., the Convention provisions do not have direct effect in our domestic law. Nor did the Oireachtas intend – and could not constitutionally have intended – to create a form of parallel Constitution via the 2003 Act. Rather, the whole thrust of the 2003 Act was to provide a form of failsafe mechanism to deal with those – hopefully rare – cases where it has been actually established that the Constitution does not meet the international obligations to which we have solemnly committed as a State.
36. It may be accepted that the 2003 Act makes this clearer with regard to the declarations of incompatibility under s. 5(1), since this remedy (such as it is) is available only where no other remedy is available to the plaintiff. What, however, is the position where (as here) the case involves a straightforward challenge to the validity of an administrative decision which does not involve a challenge to the constitutional validity or Convention compatibility of statute or common law rule?

37. In my view, it would be anomalous and at odds with the appropriate and established system of legal norms if, for instance, Article 8 ECHR came to be regarded de facto as the primary guarantee of family life with the result that Article 41 of the Constitution came to be effectively replaced or supplanted in such cases. This would, however, be the practical consequence of permitting litigants to invoke the ECHR as a first resort, instead of – as I believe the Oireachtas clearly intended with the 2003 Act – as a last resort.

38. It accordingly follows that, by analogy with the Supreme Court’s reasoning in McD v. L, even in straightforward challenges to the validity of an administrative decision where fundamental rights are at stake, the most appropriate course is for the court to examine the pleas made with reference first to the fundamental rights provisions of the Constitution. It is only where such contentions prove to be unavailing, that the court should move to the consider arguments based on the ECHR. Again, none of this is to suggest for a moment that ECHR authorities cannot be invoked by way of argument in a purely constitutional context, much as has happened for the last fifty years or so, ever before the 2003 Act was enacted.

39. In the present case, therefore, the question which first arises is whether the guarantees of family life and the protection of the marriage which are contained in Article 41 can potentially extend to grandparents and to siblings. It is true that Article 41.3.1 commits the State to the protection the institution of marriage “upon which the family is founded”. But that does not mean that the grandparents and siblings cannot, at least, for certain limited purposes and in certain special situations, come within the ambit of the protection of the family for the purposes of Article 41.

40. In my view, it cannot have been intended by the People in 1937 that the family contemplated by Article 41 should be confined exclusively and for all possible purposes to what nowadays would be described as the nuclear family of parents and children. The fact that marriage was (and, of course, is) regarded as the bedrock of the family contemplated by the Constitution does not mean that other close relatives could not, at least under certain circumstances, come within the scope of Article 41. In this regard, it must be borne in mind that grandparents and adult siblings form part of many family units which are (or, at least, were originally) formed by married couples and this was probably at least as true in 1937 as it is today.

41. Indeed, it is probably salutary to recall in this context that the principal political architect of the Constitution was himself raised for most of his formative years by his grandmother, uncle and aunt: see, e.g., Ferriter, Judging Dev (Dublin, 2007) at 26. While, of course, the purely subjective beliefs and personal life experiences of even the most pre-eminent personage associated with the drafting of the Constitution cannot in itself determine the proper interpretation of Article 41, I mention this historical fact merely to show that the drafters could not have intended that close-knit relatives by blood and marriage looking after children in the absence of their married parents would never come within the scope of the constitutional definition of the family.

42. Putting this yet another way, a household consisting solely of a grandparent who was rearing a dependent grandchild would have been generally regarded as a “family” in 1937. It would be unthinkable that to suppose that the People would have assented to a state of affairs where, in circumstances where parents who had married and were deceased or otherwise absent from the child’s life, the Oireachtas could have, for example, through legislation compelled a grandparent to yield up custody of the child to the State authorities, at least in the absence of some compelling justification for such a step. Yet unless the grandparent and grandchild were regarded as a “family” for this purpose, the Constitution would seem to have placed no impediment to the enactment of such legislation.

43. None of this is to take in the slightest from the fact that when the Constitution speaks of the family, it normally contemplates that the family will consist solely of married parents and children and such is evident from the language of both Article 41 and Article 42: see, e.g. The State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567. It is, however, to say that there can be no a priori rule which automatically excludes grandparents and adult siblings from being within the scope of a “family” for the purposes of Article 41.

44. It is true that in Caldaras v. Minister for Justice Equality & Law Reform, a case concerning the proposed deportation of the grandparents of Irish born children, O’Sullivan J. concluded that:

“I cannot see in them any warrant for extending the concept of ‘family’ as considered in those judgments in [L & O v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1] to include grandparents within the concept of ‘family’ as guaranteed by Article 41 of the Constitution or indeed otherwise . . . I do not think that as a result of the L & O decision in the Supreme Court, the meaning of the word ‘family’ in section 3(6)(c) of the Act of 1999, has been widened to include grandparents.”
45. As a matter of strictness, all that Caldaras decided was that L & O was not an authority for the proposition that grandparents came within the scope of Article 41. That is indisputably correct, since that issue was simply not before the Supreme Court in L & O. Insofar, however, as Caldaras is to be taken as having decided that grandparents cannot ever come within the scope of Article 41, I would decline to follow it and would respectfully prefer instead the reasoning of Edwards J. in M v. Minister for Justice, Equality and Law Reform [2009] IEHC 500.
46. Thus far we have been dealing with the question of whether there was any a priori rule of constitutional interpretation by which grandparents (and, by extension, adult siblings) were excluded from the scope of the family life envisaged by Article 41. For such persons to come within the scope of the constitutional protection, it is, however, necessary to demonstrate that they have such ties of dependence and inter-action with other family members that they would come within the rubric of that family and that the family itself is based on marriage. This normally pre-supposes that a person such as a grandparent would share the same house as the other family members in question and that they would have an active role in the comings and goings of the family in question. A grandparent could not, for example, be regarded as a family member simply by reason of ordinary social courtesies or even by reason of regular visits to the grandchildren’s family home. While each case must turn on its own facts, something further than the ordinary inter-action between a grandparent and a grandchild or other family member would generally be required. This, as it happens, is also the position of the European Court of Human Rights with regard to Article 8 ECHR: see, e.g., Marckx v. Belgium (1979) 2 EHRR 330, Boughanemi v. France (1996) 22 EHRR 228.

47. The facts of the present case may be thought, however, to provide a paradigm example of where, exceptionally, perhaps, it would be appropriate to regard a grandparent and an adult sibling as coming within Article 41. The first named applicant, Ms. RX, came to Ireland in September, 2004. As the Refugee Appeal Tribunal found in its decision of 6th September, 2005, granting her refugee status, she was enslaved, raped and brutally treated by marauding clans. She managed to flee to Ethiopia and travelled on from there to Ireland. At the time she was forced to leave her three young children (then aged 5 and 2 and nine months respectively) in the care of her mother and sister in Addis Abba. While the mother and sister have no income – they are themselves Somali refugees living in Ethiopia – it is not in dispute but that the children were cared for by the mother and sister while being in receipt of remittances from Ireland from the children’s mother, Ms. RX , during the period from 2006 to 2009. During this period, the children must have regarded their grandmother and aunt as their de facto parents.

48. Against this particular and special background, I am of the view that the grandmother and aunt came within the scope of Article 41. Even if I am wrong on this point, it is incontestable that the grandmother and the adult sibling would form a family for the purposes of Article 8 ECHR: see, e.g., the judgment of Edwards J. in M and that of Hedigan J. in G.O. & Ors v. Minister for Justice, Equality and Law Reform [2008] IEHC 190. In that case, Hedigan J. accepted that family life within the meaning of Article 8 of the Convention did exist between the first named applicant and her grandchildren, having regard to the circumstances of that case. He stated (at para. 26 of the judgment):

“It is my view, having considered these authorities, that family life does exist between G.O and her grandchildren. I would place particular emphasis on the fact that G.O. lives with her grandchildren and is heavily involved in their upbringing. While cohabitation may not always be essential in order for ‘family life’ to exist, the fact that G.O. lives with her grandchildren strengthens the family ties between them. The cohabitation under one roof of the family members involved and extent of their daily contact add an extra dimension to the normal relationship between grandmother and grandchildren. This sets the present applicant apart from the normal level of contact that exists between grandparent and grandchild which was present, for example, in Caldaras.
That said, this view by no means disposes of a consideration in this case of Article 8. The existence of ‘family life’ between G.O and her grandchildren does not, of itself, mean that the State cannot deport her. The right to family life under Article 8(1) is not absolute and the State is not compelled to abstain from interference with Article 8 rights. Rather, it falls to be considered whether such interference is justified in accordance with Article 8(2)….”

49. The significance of this is that given that the decision impacts on constitutional rights (and, for that matter, ECHR rights), the reasoning should, in the words of Murray C.J. in Meadows, “at least disclose the essential rationale on foot of which the decision is taken.” But before examining the adequacy of that reasoning, it is important first to examine the language of s. 18(4).
50. The words “dependent member of the family” in s. 18(4)(a) is defined in section 18(4)(b). The Oireachtas chose to use the word “means”, a word “which is prima facie at once explanatory and restrictive, exhaustive and exclusive”: see O’Neill v. Murphy [1948] I.R. 72 at 84, per Kingsmill Moore J.

51. There are, therefore, two elements of the definition: the family member in question must either be (i) “dependent on the refugee” or (ii), suffering from a mental or physical disability to such an extent “that it is not reasonable for him or her to maintain himself or herself fully”.

52. If we start with the second criterion and apply it to the case of the mother, it is hard to see how the decision can stand in view of the reasons actually given. Although it is true that the mother’s medical position appears to have deteriorated between the first medical report of September, 2008 and the second report of April, 2009 – a fact which was the subject of some comment at the hearing – the reasons given by the Minister never suggested that the medical reports were unreliable or lacked authenticity. It must be recalled here that the second medical report in particular had concluded that the mother was suffering from blindness, chronic rheumatism and depression and needed close family support.

53. In these circumstances, one is frankly at a loss to understand how the Minister could have concluded that the mother was not suffering from a mental or physical disability such that it was not reasonable for her to maintain herself fully. The reasoning here is defective on Meadows grounds, since there is no explanation at all as to how this conclusion could possibly have been arrived at in the teeth of the available evidence. Another way of looking at this is to say – if you prefer – that this part of the decision itself so far as it concerns the mother is manifestly unreasonable.

54. So far as the dependency criterion is concerned, the key words of s.18(4) (“….who is dependent on the refugee…”) refer to dependency in fact. The evidence here establishes dependency in fact, inasmuch as it is clear that the mother and the sister – who lived in abject poverty in Addis Ababa – depended for financial survival on the remittances transmitted by Ms. RX, even though she in turn was (and is) dependent on social welfare payments as her principal (if not, indeed, exclusive) source of income. That is a somewhat different thing from saying – as the Minister did in the letter of 1st October, 2009 – that Ms. RX was not “in a position to support the family members applied for”. But this is not quite the test which s. 18(4) actually posits.

55. Of course, the dependent family member who is the subject of the family reunification application in question will, by definition, be living abroad. In the nature of things, it is likely that the majority of applicants will be residing in a developing country where both the cost of living and living standards generally will be significantly below those prevailing in this State, even in these economically difficult and challenging times. One may readily conjecture a situation where the family member in question is actually financially dependent on the person who has been given refugee status at the date of the application for family reunification, even though – having regard to the higher living costs here – the refugee might not necessarily be in a position to support the other family members in the State.

56. Indeed, that is probably the situation here in that the mother and daughter were dependent in Ethiopia on the remittances from Ireland, even though one might wonder how Ms. RX could support her mother and sister if they were in fact to come to Ireland. Section 18(4) does not, however, posit a test of whether the refugee could afford to support the family members if they were to come to Ireland. It rather addresses itself to the somewhat different question of whether the family members were dependent on the refugee at the date of the application. The evidence available to the Minister would appear to admit of no conclusion other than that the mother and the daughter were so dependent.

57. In these circumstances, I am driven to the conclusion that so far as the dependency criterion is concerned, the Minister applied the wrong legal test. It follows that this aspect of this decision must also be quashed: see, e.g., Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218, White v. Dublin City Council [2004] IESC 35, [2004] 1 IR 545.

58. For these reasons, I propose to quash the decision of 1st October, 2009, and to remit the matter to the Minister so that a fresh decision on the application can now be made.

Omrawoo -v- Minister for Justice and Equality

[2017] IEHC 326 (24 May 2017)

[2016 No. 629 J.R.]
BETWEEN
SHYANI DEVI OMRAWOO
APPLICANT
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Ms. Justice O’Regan delivered on the 24th day of May, 2017
Issues
1. Leave was afforded on the 29th July 2016 to the within applicant to maintain judicial review proceedings for the purposes of seeking an order of certiorari quashing the deportation order of the 27th May 2016 made against the applicant.

2. In the statement of grounds four grounds are set out however only the first two were pursued namely that the respondent erred in her consideration of the effect of the deportation order on the private life rights of the applicant and it flies in the face of common sense that the decision to deport the applicant does not constitute an interference of such gravity as to engage Article 8 of the ECHR. In addition it is claimed that the consideration of the private life rights was flawed having regard to the length of time the applicant had been in the State her level of integration and the information furnished.

3. A statement of opposition has been filed bearing the date 8th March 2017. In it the application for certiorari is opposed on the basis that the respondent has provided reasons and a rationale for the conclusions which are discernable from the decision and that the applicant entered the State on a finite basis with a limited right to reside and was obliged to leave at the expiry of the said permission. It is also argued that the respondent was not required to justify the proposed deportation in accordance with Article 8 (2) of the ECHR and this is appropriate as the respondent had concluded on the individual facts of the within case that the potential interference did not have consequences of such gravity as to engage the operation of Article 8. The respondent also argues that upon expiry of the applicant’s permission, she remained in the State illegally and accordingly the respondent applied the correct test, i.e. the applicant’s position was precarious as distinct to that of a “settled migrant”.

4. At the opening of the hearing of the application the applicant contended that the deportation order of 27th May 2016 could not be condemned if the entirety of the applicant’s stay in Ireland was considered precarious. In this regard the applicant submits that in fact during the currency of her period of permission she was a settled migrant.

5. Although in written submissions the respondent argued that even if the applicant might be considered a settled migrant nevertheless the decision should not be impeached, however, this aspect of the opposition to the applicant’s application was withdrawn at the opening of the matter and the respondent suggested that if it was considered that the applicant was a settled migrant for some or all of a period of residence within the State then the respondent would not seek to support the decision and to this end the respondent argued that notwithstanding the applicant’s student status within Ireland continuously for a period from 10th December 2007 until 30th September 2012, nevertheless the applicant was in a precarious status throughout that period and was not considered to be a settled migrant.

6. Both parties therefore agree that the status of the applicant as a settled migrant or as precarious is dispositive of the within proceedings and both parties refer to the judgment of Lord Reid in Agyarko v. Secretary of State for the Home Department [2017] 1 WLR 823.

7. At para. 54 of the Lord Reid judgment aforesaid it is stated:

“As explained in para 49 above, the European court has said that, in cases concerned with precarious family life, it is “likely” only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8.”
8. This Court delivered judgment in the matter of W.S. v. the Minister for Justice and Equality [2017] IEHC 128 on 23rd February 2017 and it was held that the applicant was a settled migrant in Ireland for the one year period for which he had student permission and the applicant relies on this judgment in support of her submissions. On the other hand the respondent argues that the judgment in W.S. should not be followed as same was made in the absence of information being made available to the court namely:
(a) the judgment of Humphreys J. delivered on 14th November 2016 in Rughoonauth v. Minister for Justice and Equality [2016] IEHC 656 and
(b) legislation introduced in 2014 in the United Kingdom.

9. In addition the respondent argues that W.S. should not be followed because of an error within the body of the decision namely at para. 22 thereof where it is stated that the Court of Appeal recognised in the judgment of Balchand v. The Minister for Justice and Equality [2016] IECA 383 and Luximon v. The Minister for Justice and Equality [2016] IECA 382 that student permission can be considered within the concept of a settled migrant.
10. The respondent is correct in identifying the error in para. 22 of the judgment of W.S. aforesaid (albeit by the omission of a single word, in error) and for this reason as well as because the information aforesaid was not brought to the court’s attention in advance of the delivery of the judgment in W.S. this court agreed to re-visit the concept of students coming within the ambit of the settled migrant bracket for the purposes of the Article 8 assessment.

11. During the course of the hearing neither party developed any argument further in respect of the deportation order decision but rather confined their submissions to whether or not the application of the concept of “settled migrant” applies to the applicant student or not.
Brief background
12. The applicant was born in 1985 and is from Mauritius. She arrived in Ireland on 15th October 2007 on a visa. Subsequently as and from 10th December 2007 she secured student status – stamp 2 status. This permission was renewed annually and ultimately expired on the 30th September 2012.

13. It is common case that the applicant lived in Ireland for a period prior to coming into force of the student scheme of the 1st January 2011 which provides that an overall maximum period of seven years of student permission would be available within this jurisdiction save in certain exceptional circumstances. When the applicant first secured student permission in 2007 such scheme was not in place nor was a similar type scheme limiting the duration of the student within the jurisdiction in place.

14. On 27th February 2013 the applicant applied to the respondent for a change of permission status to that of stamp 4 permission. Subsequently on 12th April 2013 the applicant applied for a temporary stamp 4 permission to work pending the decision to be made in respect of the application of 27th February 2013. By decision of the 9th of September 2013 both applications were refused.

15. It is clear from details in the applicant’s application for permission to work aforesaid that notwithstanding the expiry of her student permission in September 2012 the applicant continued to work in the State. Accordingly the applicant’s residence in this State as and from the 30th September 2012 can be considered to be without permission and the applicant has been working at least for some time within this jurisdiction without permission in defiance of Immigration legislation. In this regard s. 5 of the Immigration Act 2004 provides:

“(1) No non-national may be in the State other than in accordance with the terms of any permission given to him or her before the passing of this Act, or a permission given under this Act after such passing, by or on behalf of the Minister.
(2) A non-national who is in the State in contravention of subsection (1) is for all purposes unlawfully present in the State.

16. Although there are exception to s. 5 (2) above in subs. 3 these exceptions do not apply in the instant matter.
Submissions
Rughoonauth

17. In the Rughoonauth (No.1) judgment aforesaid the applicants were students from Mauritius who overstayed their permission since 2012 and 2014 respectively. They processed an application for leave to seek judicial review on the basis that the Article 8 consideration in the impugned decision was insufficient because of the settled migrant status claimed by the applicants. In his judgment of the 14th November 2016 Humphreys J. held that temporary student permission is precisely the sort of permission that precludes the acquisition of significant or perhaps any rights under Article 8 of the ECHR. As deportation orders had already been made the Court refused to withdraw the matter pending the Court of Appeal’s decision in Balchand.

18. Following this Court’s judgment in W.S. it appears that the applicant return to Humphreys J. and requested that he would review his initial decision. Humphreys J. agreed to consider the application on the basis that he felt the Court had jurisdiction to do so.

19. The Court posed the question:

“Do Luximon and Balchand mean that students Article 8 rights must be subject to a proportionality assessment?”
and this question was answered at para. 8 of the judgment by stating that these Court of Appeal judgments are simply not authority for that proposition.
20. The next question the court posed was: “Is W.S. correct that students are settled migrants?”

21. At para. 13 Humphreys J. notes that although W.S. appears to equate settled migrants with lawful migrants, doing so was not decisive in terms of the outcome of that case.

22. In addition it was noted that the Article 8 rights were considered and a proportionality analysis was held not to be necessary therefore he held at the outcome of W.S. and the ratio of the decision was not contrary to his ruling in the judgment delivered on 14th November 2016.

23. At para. 14 Humphreys J. did indicate that the view that students are settled migrants is not a categorisation that he could follow and he believed it overlooked a number of matters including United Kingdom Immigration Act 2014 where at s. 19 an express distinction is made between persons who are in the State unlawfully and persons who are in the State precariously. The Court noted that this legislation was supported by Lord Reid in his judgment in Agyarko. The Court went on to consider the definition of “lawful”, “settled” and “precarious”. At para. 26 Humphreys J. states that the applicant was precarious even if lawful for periods and therefore not settled migrants and insofar as W.S. took a contrary view W.S. went beyond the meaning of the ECHR in terms not warranted by the texts of the Convention or its case law.

Court of Appeal jurisprudence
24. Judgments were given by the Court of Appeal on 30th July 2015 in both C.I. v. Minister for Justice and Ors. [2015] IECA 192 and Dos Santos & Ors. v. Minister for Justice & Ors. [2015] IECA 210.

25. In addition on 15th December 2016 the Court of Appeal gave judgment in the matter of Luximon v. Minister for Justice, Equality and Law Reform [2016] IECA 382 and also gave judgment in the matter Balchand v. Minister for Justice, Equality and Law Reform [2016] IECA 383.

26. The July 2015 decisions related to deportation orders made, in C.I., in respect of an applicant who is a failed asylum seeker and in Dos Santos in respect of applicants who had no permission to be in the State.

27. In the judgments of December 2016 the Court of Appeal gave consideration to whether or not the respondent is required to consider Article 8 rights raised in connection with an application for a change of permission status under s. 4 (7) of the Immigration Act 2004. In the events the applicants in Luximon and Balchand had student permission and had both applied for a change of such status to stamp 4 permission.

28. At para. 7 of Luximon the Court noted that the applicant had arrived in the State in July 2006 for the purposes of pursuing a course of studies and secured stamp 2 permission. Thereafter at para. 8 the Court identified the conditions attaching to stamp 2 permission. On 30th October 2012 the applicant had applied for a change to a stamp 4 permission pursuant to the provisions of s. 4 (7) however this was refused based upon the scheme which was introduced on 1st January 2011. It was specifically stated that Article 8 rights would not be considered in the context of this change of permission application.

29. At para. 15 of the judgment the Court noted that the Minister did not assert in the proceedings before the Court as a ground of opposition that the applicants did not have rights to private life or family life capable of protection either by the Constitution or Article 8 of the ECHR but rather that same would be considered at a deportation stage rather than at a s. 4 (7) application stage. At para. 28 the judgment records that it is important to recall for the purposes of the appeal the Minister did not assert that Ms. Luximon and her daughter at the time of the s. 4 (7) application did not hold rights to private life and a family life which the State was obliged to respect pursuant to Article 8 ECHR. At para. 59 the Court stated:

“I am in agreement with the trial judge that a proposed decision not to renew a permission pursuant s. 4 (7) of a person such as Ms. Luximon who has been in the State lawfully pursuant to a s. 4 permission for several years has the potential to be interference with her right to respect her private life and family right such that it is capable of engaging Article 8 of ECHR.”
30. In the judgment in Balchand at para. 21 the Court reiterated that what is at issue is whether or not on an application pursuant to s. 4 (7), where private life and/or family life rights are relied upon by the applicant and it is proposed not to renew a permission for a person who has been lawfully living in the State for a number of years the application is within the scope of Article 8 ECtHR or Article 8 is potentially or capable of being engaged.
31. At para. 23 of the judgment it is recorded that C.I. concerned applicants who had never lived in the State pursuant to permission and the court then goes on to quote from para. 41 of the C.I. judgment where the court observed that the ECTHR and in particular Nyanzi v United Kingdom (2008) 47 EHRR 18 and Bensaid v. United Kingdom (44599/98) (2001) 11 BHRC 297 observed that it would require wholly exceptional circumstances to engage the operation of Article 8 in relation to a proposal to deport persons who have never had permission to reside in the State. The Court of Appeal also noted that Article 8 does not entail a general obligation for a State to respect the immigrant’s choice of the country of their residence and, thereafter, para. 41 of C.I. concluded with a statement that “in order to engage Article 8, the gravity of the consequences for an illegal immigrant or for his physical or moral integrity must be above the normal consequences…”.

32. At para. 24 of Balchand, the Court of Appeal states that the comments in C.I. were made in relation to persons who never had permission to be in the State and the court noted that neither that judgment or the Supreme Court judgment in P.O. v. Minister for Justice and Equality [2015] IESC 64 considered the position of a person “such as the father or the mother herein who had been in the State pursuant to an express permission, albeit one with conditions attached which would limit the duration of any such stay”.

33. At para. 27, in Balchand, the Court of Appeal noted that the father in the case of Dos Santos had a valid work permit for a one year period and, thereafter remained without permission and the court noted as it did already in the Dos Santos judgment at para. 24, that the Minister’s examination of the file acknowledged a private right created during the lawful period of Mr. Dos Santos.

34. Although, therefore, it is correct to say there is an error in para. 22 of W.S., the error is in fact the omission of the word “implicit” prior to “recognition of the Court of Appeal in Balchand and Luximon that a student permission can be considered in the concept of a settled migrant…”.

35. The respondent argues that any such implicit recognition by the Court of Appeal is implicit only and in any event obiter and therefore should not constrain this Court nevertheless I remain of the view expressed in para. 22 of W.S. subject of course to the clarification/amendment by incorporation of the word “implicit” as mentioned above.

Additional Authorities
36. The respondent refers to the judgment of Humphreys J. in Li & Wang v. Minister for Justice [2015] IEHC 638 as being a matter which should have featured in the W.S. decision. However, that judgment concerned the application of applicants who only ever had a 90 day visitors visa to come to Ireland to visit their daughter and therefore is wholly disguisable from a party who has student permission such as the within applicant for a period of almost five years continuously albeit on the basis of successive permissions on an annual basis.

37. Similarly the UK Supreme Court in its judgment of 22nd February, 2017, in Agyarko was dealing with permission limited to an initial visitor visa only and, therefore, in my view does not advance a debate as to whether or not student permission can give rise to a settled migrant’s status.

38. Although it is noted at para. 27 of Rughoonauth, the committee of Minister’s recommendation 2015, on the security of residence of long term migrants, excludes students from category 1 of three categories nevertheless students are not excluded from the next two categories and in addition Council Directive 2003/109/EC in dealing with long term residence status in a Member State provides at Article 4(2) that only half of the period of residence for study purpose or vocational training may be taken into account in the calculation of the period of, inter alia, the five year requirement to secure long term residence status. This Directive, therefore, does not appear to support a contention that students are, at all times, precarious.

39. The judgment of the European Court of Human Rights in the matter of Jeunesse v. Netherlands (App. No. 12738/10) (2015) 60 EHRR 17, was also referred to by the respondent, in addition to the cases referred to in the W.S. matter, however, the applicant argues that this case does not advance the query currently under consideration as it dealt with failed asylum seeker. I agree with the applicant – the claimant in that matter was allowed to live in Holland pending his asylum application. The Court stated; “This cannot be equated with lawful stay where the authorities explicitly grant an alien permission to settle in their country”.

40. The respondent referred to the European Court of Human Rights decision in Butt v. Norway (47017/09), a judgment of 4th March, 2013. The respondent relies on the case to support the proposition that although a party may have had permission, subsequent illegal status within a particular State will give rise to a loss of the settled status that might arise on foot of the permission.

41. At para. 78 of the European Court of Human Rights judgment aforesaid it is stated:-

“The court therefore agrees that the Government that the applicants could not be viewed as ‘settled migrants’ as this notion has been used in the case law.”
42. The applicant points out that permission was secured in that matter based on dishonest representations where permanent residence status was removed once the dishonesty was discovered and therefore if one discounts the permission that was secured on a dishonest basis, it appears that the applicant in that matter in fact held permission from February 1992 until the summer of 1992, only.
43. In the circumstances I am not satisfied that the case advances the respondents’ argument that:

(1) subsequent illegal status will eliminate prior settled migrant status, or,
(2) the status of an applicant at the date of any application will be the relevant status for the purpose of the decision maker.

44. The respondent refers to the judgment of the Court of Third Chamber of 18th October, 2012, in the matter of Case C-501/10 Staatssecretaris van Justities v Mangat Singh, in particulars para. 46 and 47 thereof. Paragraph 46 noted that Directive 2003/109 in its preamble stated that it is the duration of the legal and continuous residence of five years which shows that the person concerned has put down roots in the country and, therefore, the long term residence of that person.
45. Para. 47 then goes on to state that in the light of the objectives of the Directive, Article 3(2) excludes third country nationals who are lawful and possibly continuous in nature but such party’s residence does not prima facie reflect any intention on the part of such nationals to settle on a long term basis.

46. In addition, the respondents refer to para. 32 and 33 of the opinion of Mr. Bot in the Singh case aforesaid, to the effect that the duration of the stay of the third country national in the Member State reveals the intensity of the links established and after a period of residence which is sufficiently long and continuous such third country national has expressed his intention to settle permanently and is shown that he has put down roots in the State. Mr. Bot opines that the longer the period of residence in the host Member State, the closer the links with that State are, presumed to be.

47. The Singh case and the opinion of Mr. Bot, however, were dealing with an application seeking the issue of a long term EC residence permit by Mr. Singh and do not deal with the concept of who might come under the umbrella of “settled migrant” which is outside the scope of that Directive and in the event does not apply to Ireland.
Conclusion
48. By reason of the foregoing matters and for the reasons outlined in the judgment in W.S., subject to the clarification/amendment to para. 22 thereof by the inclusion of the word “implicit” as herein before outlined, student permission such as that enjoyed by the instant applicant from 10th December, 2007 to 30th September, 2012, gives rise to the applicant being characterised as “a settled migrant” for that period.

49. As the parties limited themselves to arguments on whether or not a categorisation of a settled migrant applies to the instant applicant during the period for which he had student permission, the within judgment is similarly limited.

he within judgment is similarly limited.

F.E. (a minor) & ors -v- Minister for Justice and Law Reform

[2014] IEHC 62 (14 February 2014)
Judgment Title: F.E. (a minor) & ors -v- Minister for Justice and Law Reform

Neutral Citation: [2014] IEHC 62

High Court Record Number: 2009 966 JR

Date of Delivery: 14/02/2014

Court: High Court

Composition of Court:

Judgment by: McDermott J.

Status of Judgment: Approved

 

Neutral Citation: [2014] IEHC 62

THE HIGH COURT
JUDICIAL REVIEW

[2009 No. 966 J.R.]

 

BETWEEN

F.E. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND M.E.) AND, B.E. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND M.E.) AND, M.A.E. (A MINOR ACTING BY HIS FATHER NEXT FRIEND M.E.) AND M.E. AND E.E.
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on 14th day of February, 2014
1. The court has already given its judgment on this application for an order of certiorari by way of judicial review quashing the deportation order issued against M.E. on 27th August, 2009. A declaration was also sought that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights had been infringed. Leave to apply for judicial review had been granted on 16th February, 2011 (Hogan J.) on a single ground that:-

“The decision of the respondent to make a deportation order against the fourth named applicant on the basis that the legitimate aim of the state to prevent crime and disorder constituted a substantial reason associated with the common good which required his deportation, having regard to the conviction recorded against him, was disproportionate in the all the circumstances, in that it infringed the applicants’ constitutional and Convention rights.”
2. The circumstances and background to the case are fully set out in the judgment of the court and the application was refused for the reasons set out in the judgment.
3. The applicants now seek leave to appeal this judgment to the Supreme Court pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, which provides that leave cannot be granted unless the court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken.

4. Written submissions were furnished by both parties on this application for a certificate, and were elaborated upon in oral argument, but the court is not persuaded that the test laid down under s. 5(3)(a) has been met.

5. The point upon which a certificate is sought is as follows:-

“1. Whether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows v. the Minister for Justice, Equality and Law Reform in an application to quash a decision made by the respondent to deport a non-EU national who was the parent of minor Irish citizens, the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that:-
• It is not sufficient that an application merely asserts that the decision is irrational, unreasonable and disproportionate and invites the court to reassess the balance of reasonableness as between the interests of the state and the rights and interests of the applicant and the child or family concerned;

• The court is entitled to require the applicant to identify the particular error, omission or other flaw in the Respondents’ reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate.”

This point is the same as a point of law certified under s. 5(3)(a) in the case of Lofinmakin (An infant acting by her father and next friend Akintola Lofinmakin) & Ors (Applicants) v. the Minister for Justice, Equality and Law Reform & Ors (Respondents) [2011] IEHC 116 by Cooke J. following a refusal of leave to apply for judicial review in that case.
6. Section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, provides:-

“The determination of the High Court of an application for leave to apply for judicial review…or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted 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 an appeal should be taken to the Supreme Court.”
7. McMenamin J. in Glancre Teoranta v. An Bord Pleanála [2006] IEHC 205 in considering the principles to be applied to a consideration of an application for a certificate stated:-
“1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as enable the courts to administer that law not only in the instant, but in future such cases.

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.

8. Normal statutory rules of construction apply which mean, inter alia, that “exceptional” must be given its normal meaning.

9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”

8. It is now submitted that this Court in its judgment approached the question of proportionality incorrectly by requiring the applicants to show that important matters were not considered at all in the respondent’s determination, or that the decision was irrational or unreasonable. It is claimed that the applicants should not be required to identify particular or specific errors in the proportionality determination and that a decision to deport may be found to be disproportionate in circumstances other than where the decision is deemed to be irrational or unreasonable according to the principles set out in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. Furthermore, it is said that the court’s application of the principles set out in Meadows v. Minister for Justice [2010] 2 IR 701 by the Supreme Court was incorrect.
9. This Court in its application of the Meadows principles applied what is acknowledged to be the repeated and consistent interpretation by the High Court of that decision as expressed by Cooke J. in I.S.O.F. v. Minister for Justice, Equality and Law Reform (No.2) [2010] IEHC 457, in which he stated as follows:-

“Where the validity of an administrative or quasi judicial decision comes before the court on judicial review, the Court’s starting point is the decision itself; the basis upon which it has been reached and the process by which it has been decided. It does not have before it an appeal against the decision, much less a merits-based appeal by way of re-adjudication of the original issue. Its jurisdiction is based upon the content of the decision and the law applicable thereto. Where the challenge to the decision is based upon the assertion that it has the effect of intruding disproportionately upon the fundamental rights of those affected by it, it is the duty of the court to assess whether the applicant demonstrates that it is disproportionate in the sense of being irrational or unreasonable according to the Keegan/O’Keeffe test. It does so by reference to the evidence, information and documentation available to or procurable by the decision maker at the time. It does not take account of new information or evidence which has become available since the decision was made. (In the case of a deportation order the remedy in that regard lies in an application for revocation under s. 3(11) of the Immigration Act 1999, a decision which is itself susceptible to judicial review for proportionality where necessary.) In the judgment of the Court no material difference exists between the evaluation of proportionality as regards the interference with “qualified rights” (as in the present case) and “absolute rights” (as in the case of Meadows). If constitutional rights are in issue (whether absolute or qualified) it is the function and duty of the High Court to vindicate them. The same can be said for rights entitled to protection under the European Convention of Human Rights and the need for the High Court, in compliance with Article 13 of the Convention, to provide an effective remedy for that protection… It remains the case however… that judicial practice in the exercise of the judicial review function is capable of adapting to accommodate the need to examine the substantive content of a decision having impact on fundamental rights in order to evaluate the lawfulness of its encroachment on those rights without thereby supplanting the administrative decision with a new decision of its own… By examining the substance of the effect of an interference brought about by an administrative decision on fundamental rights of an applicant for judicial review in order to assess whether it goes beyond a lawful encroachment, the Court is not substituting its own view of what the decision ought to be but is testing it by reference to what is objectively reasonable and commonsense.”
10. The applicants claim that they are entitled to request that the High Court itself assess the proportionality of the decision to deport rather than defer to the assessment of the respondent in the sense that the court will refrain from quashing a decision unless it can be said to be unreasonable or irrational as set out in I.S.O.F. It is contended that the principle of proportionality requires the reviewing court to assess the balance which the decision maker has struck and exercise its own judgment as to whether a decision affecting fundamental rights is disproportionate in its effects but should not constrain the court to uphold the respondent’s assessment on proportionality provided it is not reached unreasonably or irrationally. It is submitted that an effective remedy requires the court to exercise its own judgment as to what, in the circumstances, is a disproportionate impact on those rights rather than to assess proportionality in a manner circumscribed by the common law rules applicable to judicial review.
11. This precise point was considered at length in O.O.O.A. & Ors v. Minister for Justice, Equality and Law Reform [2011] IEHC 78 in which a challenge was made to a deportation decision on the grounds that it was unreasonable and, therefore, disproportionate to expect a mother and her children to move to Nigeria to enjoy family life with the father who was facing deportation. It was contended that the Minister did not identify a “substantial reason” requiring the deportation of the father in accordance with the judgment of Denham J. in the Supreme Court in Oguekwe v. Minister for Justice [2008] 3 IR 795. Furthermore, it was submitted that immigration control was not a reason of sufficient substance to outweigh the detriment that the deportation would inflict upon the applicant family, particularly following the decision in Meadows, which now required that proportionality be considered when reviewing the reasonableness of an administrative decision.

12. Clark J. noted that in the Meadows case Murray C.J. stated that:-

“(When) reviewing the rationality or otherwise of the decision it remains axiomatic that it is not for the court to step into the shoes of the decision maker and decide the issue on the merits but to examine whether the decision falls foul of the principles of law according to which the decision ought to have been taken.”
The learned Chief Justice continued:-
“When 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. It is also already well established that the court may do so when considering whether the Oireachtas has exceeded its constitutional powers in the enactment of legislation.”
13. Clark J. reiterated that proportionality was a well established principle which had previously been applied by the Supreme Court in challenges brought by way of judicial review in deportation cases in Fajujonu v. Minister for Justice [1992] I.R. 151, and A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1. The learned judge noted that the principle of proportionality as applied in such cases as part of the reasonableness test was not a new concept introduced in the Meadows case. These judgments do not suggest that traditional common law rules in relation to the scope of judicial review have changed and importantly affirm that the judicial review court is not a court of appeal. She noted that Meadows:-
“affirms that it is the Minister who retains the discretion and not the reviewing court as it is only the Minister who has responsibility for public policy in this area and it is for him to decide where that balance lies.”
Indeed, Clark J. considered that Meadows was an unequivocal statement that the law relating to the deportation of the parents of citizen children and of judicial review remained unchanged.
14. It was emphasised in the Meadows case that the decision maker was entitled to a wide measure of discretion under section 3. Murray C.J. stated at para. 70 that:-

“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.”
15. Denham J. (as she then was) in Meadows when applying the relevant principles of judicial review to decisions affecting an applicant’s fundamental rights stated, inter alia:-
“(f) the court should have regard to the implied constitutional limitation of jurisdiction of all decision makers which affects rights, and whether the effect on the rights of the applicant would be so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.”
The learned judge also noted that:-
“[180] This test includes the implied constitutional limitation of jurisdiction of all decision making which affects rights and duties. Inter alia, the decision maker should not disregard fundamental reason or common sense in reaching his or her decision. The constitutional limitation of jurisdiction arises, inter alia, from the duty of the courts to protect constitutional rights. When a decision maker makes a decision which affects rights then, on reviewing the reasonableness of the decision:-

(a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations;
(b) the rights of the person must be impaired as little as possible; and

(c) the effect on rights should be proportional to the objective.”

16. Fennelly J. noted that the two fundamental principles to be respected in rules for judicial review of administrative decisions were, firstly, that the decision is that of the administrative body and not of the court and the latter may not substitute its own view for that of the former. Secondly, the system of judicial review required that fundamental rights be respected. The issue in the case was whether the judicial review principles in the Keegan and O’Keeffe cases were suited to the task of ensuring that the fundamental rights of applicants were respected. The learned trial judge considered that it was unnecessary to change the test provided in Keegan and O’Keeffe. The test was capable of according an appropriate level of protection of fundamental rights. As quoted in the court’s judgment in this case Fennelly J. stated:-
“449. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word “substantive” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision maker. 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 Keegan). The applicant must discharge that burden by producing relevant and cogent evidence.
450. 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.”

He reaffirmed that the judgment implied no view on how the application for judicial review in Meadows should be decided in the High Court “except insofar as it explains the applicable test for review on the ground of unreasonableness. It will be for the High Court to decide whether the applicant has provided sufficient evidence to discharge the burden which rests on her to show that the decision of the first respondent was, recalling once more the words of Henchy J. “fundamentally at variance with reason and common sense””.
17. The majority judgment in Meadows is clear that judicial review is not to be viewed as an appeal from the administrative decision and that the burden of proof remains upon an applicant to establish by cogent evidence that the challenged decision was unreasonable in that it was disproportionate in the sense explained in the judgments.

18. In Donegan v. Dublin City Council & Anor [2012] IESC, the Supreme Court considered the provisions of s. 62 of the Housing Act 1966, which required a District Court to make an order for possession of a local authority house if a number of formal proofs were established under the section. The occupier had no right or entitlement to raise any defence to this application other than by way of challenging the housing authority in respect of these proofs. The absence of a judicial discretion meant that the personal circumstances of the occupier had to be disregarded as being irrelevant. The proportionality or fairness of the making of the order was also irrelevant and could not be taken into account in the statutory scheme. The applicant challenged the making of a decision under s. 62 on the basis that it failed to provide an effective remedy for alleged breach of the applicant’s family rights under Article 8 of the European Convention on Human Rights as required by Article 13 of the Convention. The Council contended that an effective remedy was available to the applicant by way of judicial review having regard to the jurisdiction of the court to consider the “proportionality” of the decision at the judicial review stage. However, no facts were or could have been considered by the District Court on an application for a warrant. It was submitted that personal or family circumstances could be considered in judicial review proceedings in assessing the proportionality of the decision even though these facts would, for the first time, be canvassed and considered by way of judicial review in the High Court. The Supreme Court was satisfied that the factual issues in the case as to whether the son of the family was a drug addict or a drug pusher, or whether he was residing in the house for a particular period, were not issues to be determined for the first time on an application for judicial review. Although the High Court could set aside a decision unlawfully made, that would inevitably leave the basic issues of fact unresolved. The court could not make its own findings of fact and substitute a decision based on those findings for that made by the decision maker. McKechnie J. (delivering the unanimous decision of the court) noted that any challenge by way of judicial review to the District Court warrant, absent a patent failure to comply with the section itself, was bound to fail and the court could not enter into an assessment of the facts and personal circumstances behind the application in the course of a judicial review.

19. The traditional scope of the remedy was reaffirmed by the Supreme Court. McKechnie J. stated:

“130. The Council have submitted that the Supreme Court decision in Meadows…has noticeably changed the scope of judicial review, and that, therefore, notwithstanding that such remedy may not have been a sufficient safeguard in the past, it is now clear that it is. In particular, it is argued that Meadows has incorporated a consideration of proportionality in judicial review, where an administrative decision bears on constitutional or Convention rights.
131. In this regard the decision of Murray C.J. at p. 723 should be noted:-

‘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…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 Keegan or O’Keeffe which would exclude the court from applying the principle of proportionality where it could be considered relevant.’

It is clear from this statement, that although some extension of judicial review for reasonableness is envisaged so as to take account of the proportionality of the action, it is to be done on the basis of Keegan and O’Keeffe, rather than as an entirely novel criterion. As Fennelly J. noted at p. 817 in the same case:-

‘Two fundamental principles must, therefore, be respected in the rules of judicial review of administrative decisions. The first is that the decision is that of the administrative body and not of the court. The latter may not substitute its own view for that of the former. The second is that the system of judicial review requires that fundamental rights be respected.’

Thus, although some consideration of fundamental rights may be entered into in judicial review, this in no way affects the traditional position that such remedy cannot be used as a rehearing or otherwise to determine conflicts of fact.
132. In light of the comments already made as to the adequacy of judicial review, I would not find that Meadows has substantially altered that position in this regard.”

20. The approach in I.S.O.F. was also applied in Orji v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Cooke J., 1st October, 2010) and in F. v. Minister for Justice, Equality and Law Reform [2010] IEHC 386 in which Cooke J. stated:-
“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.”
Cooke J. reiterated that it was the duty of the court to assess whether the applicant had demonstrated that the decision was disproportionate in the sense of being irrational or unreasonable according to the Keegan/O’Keeffe test.
21. The applicants rely upon the decision of Hogan J. in P.S. & B.E. [2011] IEHC as authority for the proposition that the Meadows decision permitted an assessment by the High Court of the proportionality of the respondent’s interference with the constitutional rights of the applicants’ simpliciter. There is no discussion of the Meadows decision in P.S. & B.E. It is clear that the learned judge in that case assessed the evidence adduced on behalf of the applicants relating to the material which was before the Minister at the time the decision was made to deport B.E. and concluded that the decision involved an “entirely unrealistic and totally unbalanced assessment” of the prospects of P.S. visiting his wife in Nigeria. The applicant husband lived on disability payments, suffered from intellectual disability and bi-polar disorder, was dependent on the daily support of a religious order to enable independent living in the community and was assessed twice a month by an educational psychologist. The decision was held to be disproportionate and “unreasonable in law”. I do not accept that this decision is at variance with the decision of this Court in the application of the Meadows principles.

22. Though the applicants on this application rely upon the decision of Hogan J. in Efe & Ors v. Minister for Justice, Equality and Law Reform & Ors (No.2) [2011] IEHC 214, it is clear that the learned judge in that case adopted what he regarded as “the succinct and comprehensive summary of the present law contained in the judgment of Cooke J.” in I.S.O.F. v. Minister for Justice, Equality and Law Reform (No.2) concerning how the Meadows decision ought to be applied to a challenge by way of judicial review in deportation cases. As noted by Hogan J. I.S.O.F. was a decision in which a certificate of leave to appeal to the Supreme Court in order to clarify aspects of Meadows was refused by Cooke J..

23. The applicants also rely upon the decision of Clark J. in S(B) & Ors v. Minister for Justice, Equality and Law Reform [2011] IEHC 417 and contend that the learned judge looked at the affect of the decision of the respondent on the constitutional rights of the applicants’ family and weighed whether it was proportionate viz a viz the protection of the integrity of the State’s immigration system. In that case the applicants challenged the decision by the Minister to revoke a deportation order made under s. 3(11) of the Act on the basis, inter alia, that the respondent had failed to consider the right of the citizen children to the care and company of their father who was the subject of the deportation and failed to consider the different circumstances which existed following the deportation six years earlier. The learned judge stated at para. 32:-

“The format of the consideration of the application gives little assurance of any appreciation that this was not a challenge to his deportation or that B.S. was not seeking to remain on humanitarian grounds but rather, that he wished the Minister to lift the lifelong exclusion from Ireland which followed the deportation order. The existence of this constitutionally protected family in Ireland was not recognised as a fundamental change of circumstances since he was deported in early 2003. Considering the completely fresh set of facts presented with the entirely new identified constitutional rights, it is almost inconceivable that the Minister is standing over the near mechanical recital of those submissions received. Those identified constitutional rights deserved a more significant recognition in the purported balancing exercise which followed. It cannot be a sufficient examination of a child’s constitutional rights to say that they are not absolute that each child is entitled to Nigerian citizenship and that the child, T., was of an adaptable age when those children at nine and six were Irish citizens living in Ireland since their birth with their mother who had been here for ten years.”
It was held that this was not a true examination of the circumstances advanced and was not in accordance with the principles set out in the Supreme Court judgment in Oguekwe. Furthermore, it was held that the main ground for setting aside and quashing the respondent’s decision was that he simply misunderstood or mischaracterised the nature of the application. This is not only consistent with the proper application of the principles in Meadows, but is in accordance with the learned judge’s view as to the affect of the Meadows decision as set out in detail in her judgment in the O.O.O.A. case already discussed.
24. Hogan J. in Efe held that the constitutional rights of the applicants were adequately vindicated by the common law rules of judicial review following the Meadows decision. He also concluded that the Meadows principles satisfied the requirements of Article 13 of the European Convention on Human Rights and that there was no basis for granting a declaration that the rules of judicial review were unconstitutional because they did not provide an effective remedy sufficient to satisfy the requirements of Article 13.

25. In the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2.I.R. the Supreme Court in finding that s. 5 of the Bill was not repugnant to the provisions of the Constitution noted that all of the matters (including deportation orders) fell to be decided in an administrative process by persons authorised by law to do so:-

“It is not the function of the courts to decide such matters anew on their merits but to determine the validity of the decision taken as a question of law.”
26. In this case a number of matters were advanced to this Court as to why the decision to deport the applicant was disproportionate. These were:-
(i) That the deportation order required him to remain outside the state indefinitely resulting in a permanent disruption of family life which engaged the rights under Articles 41and 42 of the Constitution.
(ii) The best interests of the children were not served by the making of the deportation order;

(iii) It was unreasonable to expect the applicant wife and children to move to Nigeria to be with M.E.;

(iv) E.E. would be left to look after the children alone in the state without the support of her husband;

(v) The children were not of an adaptable age and it was not in their best interests that their father be deported;

(vi) If the children were required to live in Nigeria they would suffer disadvantages in their upbringing there rather than in Ireland and would not be able to avail of the same level of education and other opportunities (including health protection) as would be available in this State;

(vii) The deportation order was unreasonable because the applicant had been convicted of an offence in respect of which a relatively short term of imprisonment had been imposed, which he had served and following which he had a clean record and had not come to the adverse attention of the authorities up to the time of the making of the order.

27. The court examined all of the matters advanced by way of criticism of the deportation order as disproportionate in the context of the fundamental rights of the applicants under the Constitution and Article 8 of the European Convention on Human Rights and determined that the applicants had not discharged the onus of proof required to establish that the decision was unreasonable in the sense that it was disproportionate within the meaning of the Meadows case.
28. As repeatedly stated by the Supreme Court, judicial review is not a form of appeal and the onus of proof lies upon the applicant to demonstrate that the impugned decision is fundamentally flawed. In this case the court has determined that the applicants have failed to do so. It was clearly incumbent upon the applicants to demonstrate by reference to the impugned decision the factors which establish the disproportionality for which they contended. As already indicated, the applicants advanced such factors but the court rejected the challenge for the reasons set out in the judgment.

29. To that extent, this case is distinguishable from the case in which the point of law was certified in Lofinmakin (an infant) v. Minister for Justice, Equality and Law Reform [2011] IEHC 38 by Cooke J. That was an application for leave to apply for judicial review in which an order of certiorari was sought quashing a deportation order made against a Syrian businessman who had visited the country on temporary visas on previous occasions in order to visit his wife and children. The challenge was based on a total of twenty six grounds, five of which were later abandoned. Four other grounds failed to specify with adequate precision the exact illegality or other flaw in the deportation order which it was sought to quash.

30. The main ground relied upon was that the applicants were entitled to an effective remedy under Article 13 of the European Convention on Human Rights and that judicial review did not provide such a remedy because of “common law constraints”. The applicants sought a declaration that the judicial review remedy was ineffective and incompatible with the state’s obligation under Article 13 of the Convention. However, the applicants had not pleaded that their fundamental rights had been violated by the deportation order and that the violation could not be adequately remedied by appropriate reliefs based on the infringement of their rights under the Constitution or otherwise under national law. This was a condition precedent to seeking a declaration of incompatibility under s. 5 of the European Convention on Human Rights Act 2003, and in accordance with the decision of the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71. An application to amend the statement of grounds to allow these issues to be canvassed was refused. Apart from the fact that the amendment would prejudice the respondents in their conduct of the case, the court considered that the matter had already been answered by Clark J. in N.B. & Ors v. Minister for Justice and Law Reform (Unreported, High Court, 30th July, 2010, at paras. 39 – 60). The court indicated that it was not necessary to rule again on that issue but outlined its reasons why this was so extensively at paras. 19 to 51 of the judgment.

31. Cooke J. noted that:-

“21. The Supreme Court has also made it clear in cases such as Dimbo v. Minister for Justice, Equality and Law Reform [2008] IESC 26 and Oguekwe v. Minister for Justice, Equality and Law Reform [2009] 3 I.R. 795, that where the Minister is considering whether to make a deportation order in circumstances where its effect will impinge upon fundamental rights of the applicant and his or her family members, he has an obligation to consider a wide range of matters (“ the factual matrix”), including the personal and family circumstances of the persons concerned and the potential interference with their rights. (See, in particular paragraph 85 of the judgment of Denham J. in Oguekwe). The Minister must have a substantial reason for making the deportation order and all relevant factors and principles must be weighed in a fair and just manner so as to arrive at a reasonable and proportionate decision. That is the test of the validity of the decision to make the deportation order. While the High Court on judicial review does not substitute its own view as to whether a deportation order ought to be made or not, it can consider its lawfulness by reference to that test and set it aside if the result achieved in balancing those considerations is so clearly lacking in proportionality as to render its unreasonable or irrational. The so called “common law constraints” do not therefore preclude the High Court in the exercise of its judicial review function from assessing the substantive lawfulness of the decision in that regard.”
32. The court also concluded that the case law of the European Court of Human Rights did not support the applicants’ argument that the only “effective remedy” under Article 13 in respect of a deportation order, which it was contended unlawfully interfered with the protection of family and private life rights under Article 8 of the Convention, could be a judicial remedy offering a de novo re-adjudication of the merits of the deportation decision and that such a remedy was unavailable from the High Court within the constraints of O. 84. Cooke J. noted:-
“39. …as already pointed out earlier in this judgment, the Supreme Court in Meadows has confirmed the entitlement and duty of the High Court in reviewing the lawfulness of a deportation order which encroaches upon the constitutional rights and Convention protection of a deportee and his family members, to examine the substantive reasons put forward by the Minister in justification of the balance sought to be struck between those personal rights and the aims or interests of the state sought to be safeguarded and to satisfy itself that the resulting decision is not unreasonable or irrational because the balance struck is disproportionate in its encroachment on those rights.”
33. Cooke J. in a judgment delivered on 25th March, 2011, granted a certificate of leave to appeal to the applicants in Lofinmakin on grounds which are identical to those which this Court is now invited to certify. The learned judge stated that the proposed ground was based upon the finding in Lofinmakin in an application for judicial review of a narrative decision that it is not sufficient that the court be invited to re-evaluate the substantive decision which is challenged and, in effect, to substitute its own view of the merits of the application which the contested decision determines. The learned judge stated at para. 7 that:-
“. . . The court is motivated to grant the certificate because of the very large number of cases in which reliance is sought to be placed by applicant parties upon the law as stated by the Supreme Court in its judgment…in Meadows. Although the court had endeavoured in its judgment to outline its own understanding of the state of the law following that judgment as regards the test of rationality or reasonableness in law of decisions of this character, a very large number of cases are currently pending before the High Court in the asylum list in which it is asserted that the Meadows judgment is authority for the proposition that the High Court has jurisdiction and an obligation to examine the substantive merits of the challenged decision of the respondent and, where appropriate, to effectively substitute its own evaluation of the representations made to the Minister against deportation where the court considers the Minister’s decision to be disproportionate in the balance struck.”
He noted that the issue transcended the circumstances of that case and potentially affected many others. He concluded that the issue of proportionality may extend to other quasi judicial or administrative decisions affecting constitutional rights and would be of exceptional public importance for that reason. He was, therefore, disposed to grant a certificate. The case late became moot and did not proceed [2013] IESC 49.
34. It is clear that Cooke J. considered the law in the matter to be settled and, indeed, had refused to certify a similar point in the I.S.O.F. case. Furthermore, his certification predates the decision of the Supreme Court in Donegan which effectively affirmed the decision in Meadows and, in my view, supports the approach in the various decisions of the High Court on this issue which have sought to apply the Meadows decision in the asylum immigration area. In my view the continued assertion that the High Court has a jurisdiction and obligation to examine the substantive merits of a challenged decision and effectively substitute its own deportation decision when the court considers the Minister’s decision to be disproportionate is, in the light of present authorities, incorrect and does not give rise to a point of law of exceptional public importance that requires resolution by the grant of a certificate.

35. I am not satisfied that any of the cases cited in argument support the proposition advanced by the applicants.

36. The applicants in Lofinmakin did not identify a precise basis upon which the alleged disproportionate nature of the decision in that case could be challenged. It was clear that generalised grounds were unacceptable as a basis upon which to seek leave. Cooke J. emphasised the imprecise nature of the grounds advanced. In this case the precise ground was formulated by Hogan J. in granting leave to apply for judicial review namely that, having regard to the conviction recorded against the applicant, the decision to make a deportation order against him was disproportionate in that it infringed his constitutional and conventional rights. That precise ground provided a framework within which to advance the criticisms of the decision to which I referred earlier. Thus, the nature of the question formulated in Lofinmakin cannot be transposed simpliciter to the single ground in this case which was not a simple assertion that the decision was unreasonable and disproportionate and, in fact, identifies the particular error which is claimed to render the decision flawed. Therefore, I am not satisfied that the question submitted requires to be answered to enable the court to reach its decision. Furthermore, a point of law certified under s. 5(3)(a) must be determined, not in the abstract, but within the context and on the basis of the facts and circumstances of the particular case.

37. For all of the above reasons, the court is not satisfied to certify that the decision in this case involves a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court. I am satisfied that the legal point in the form of the question posed does not arise in this case. I am not satisfied that the common law rules in respect of judicial review or their adequacy as an effective remedy under Article 13 of the European Convention on Human Rights or the Constitution are in a state of uncertainty. The standard applicable to judicial review concerning the issue of proportionality and de novo hearings has been addressed fully by the Supreme Court in the Meadows case and subsequently, in the Donegan case. Those principles have been applied consistently in the High Court. The applicants cannot simply impute or create uncertainty concerning a point of law by repeatedly raising one which in the courts view has already been decided.

Asibor (a minor) & Ors -v- MJELR

 

Neutral Citation: [2009] IEHC 594

High Court Record Number: 2009 200 JR

Date of Delivery: 02 December 2009

Court: High Court

Composition of Court:

Judgment by: Clark J.

Status of Judgment: Approved

 

Neutral Citation Number: [2009] IEHC 594

THE HIGH COURT
JUDICIAL REVIEW

2009 200 JR

 

BETWEEN

OMO EDNA ASIBOR (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND TINA ASIBOR), LILIAN ASIBOR (A MINOR SUING BY HER MOTHER AND NEXT FRIEND TINA ASIBOR), TINA ASIBOR AND LOVIS ASIBOR
APPLICANTS
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT
AND
ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION

NOTICE PARTIES

JUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 2nd day of December, 2009.
1. By order of Feeney J. on the 11th June, 2009 the applicants were granted leave to apply for an order of certiorari to quash the decision of the Minister for Justice, Equality and Law Reform (“the Minister”), dated the 27th January, 2009, to make a deportation order against Mr Lovis Asibor, the fourth named applicant.

2. A similar leave order was previously made by McMahon J. on the 22nd May, 2009 in the case of Mr Kabir Alli [2009 No. 193 J.R.]. Mr Alli and Mr Asibor are not related but as the two cases raised similar issues the judicial review hearings were heard together at the King’s Inns, Court No. 1, over four days in July, 2009. Mr John Finlay S.C. with Mr Michael McNamara B.L. appeared for the Asibor family. Ms Sara Moorhead S.C. with Ms Cindy Carroll B.L. and Mr David Conlan Smyth B.L. appeared for the respondent in both cases.

3. Feeney J. granted leave to the applicants in this case to challenge the deportation order on the following grounds:-

1) The Respondent failed to apply the correct test in respect of the constitutional and convention rights of the Applicants in applying a test of insurmountable obstacles in the context of considering whether the First, Second and Third Named Applicants could accompany the Fourth Named Applicant to his country of origin.
2) The analysis contained in the record of the Respondent’s decision did not reflect the principles laid down by the Supreme Court in the cases of Oguekwe v. The Minister [2008] IESC 25 and Dimbo v. The Minister [2008] IESC 26 and in particular did not identify a substantial reason which required the deportation of the Fourth Named Applicant with sufficient clarity but rather used a formula of words and did not sufficiently weigh and consider facts relevant to the citizen children and the family unit; and

3) The decision to deport the Fourth Named Applicant was neither proportionate nor reasonable.

4. Leave was granted on similar grounds in the case of Mr Alli and there were few differences between the arguments advanced on behalf of Mr Alli and Mr Asibor at the judicial review hearings. Those arguments are analysed at length in the judgment of this Court in the case of Mr Alli which was also delivered today, and the conclusions reached in that case on the applicable principles apply equally to this case. The Court is delivering judgment in the two cases separately in order to avoid confusion between the facts and circumstances of the two families.
Background
5. The applicants in this case are a family in which the third applicant Mrs Tina Asibor is the wife and the fourth named applicant Mr Lovis Asibor is the husband. They are the parents of two daughters, the first and second named applicants, who are minors. Mr and Mrs Asibor were born in Nigeria in 1969 and 1975 respectively and were married in May, 2000 in Nigeria. Their older daughter, Omo Edna, was born on the 16th December, 2003 in Ireland and is a citizen of Ireland. Her sister Lilian was born on the 28th February, 2007 in Ireland but because of a change in citizenship law she is not an Irish citizen.

6. Mrs Asibor arrived in the State on the 24th October, 2003 and made an application for asylum based on a fear of persecution at the hands of the Ijaw tribe in the Delta region of Nigeria. However after she gave birth to Omo Edna, an Irish citizen, two months after arriving in the State she abandoned her asylum claim and instead applied for residency on the basis of that daughter’s birth. Her husband was not with her in the State at that time and when she was granted permission to reside in the State under the IBC/05 Scheme for an initial period of two years until the 1st September, 2007, her husband was not included. The initial period was subsequently renewed for a further three years until the 1st September, 2010. One of the conditions of the permission to remain in the State was:

“- that you accept that the granting of permission to remain does not confer any entitlement or legitimate expectation on any other person, whether related to you or not, to enter the State.”
7. Mr Asibor arrived in the State on the 3rd December, 2006, that is almost three years after the birth of his older daughter. His claim for asylum was based on a fear of persecution at the hands of the Ijaw tribe in the Delta region in the context of intertribal conflict there. The Refugee Applications Commissioner compared the accounts given by Mr and Mrs Asibor and found material inconsistencies in those accounts. He recommended that Mr Asibor should not be declared a refugee. An appeal against that recommendation to the Refugee Appeals Tribunal was unsuccessful as was a subsequent application for subsidiary protection. On the 31st August, 2007 the Minister issued a proposal to deport Mr Asibor who then applied for leave to remain in the State on humanitarian grounds.
8. Of some relevance is the fact that when on the 3rd December, 2006 Mr Asibor arrived at Dublin Airport and claimed asylum, he said that he had not seen his wife for more than three years and had only recently discovered that she was in Ireland. When, earlier this year, an injunction was sought preventing the deportation of her husband, Mrs Asibor claimed that she had been continuously residing in the State since the 24th October, 2003. However it became apparent that if Mrs Asibor had never left the State and Mr Asibor had not seen her for three years before coming to Ireland, he could not be the father of Lilian, who was born in February, 2007. It was then admitted in an affidavit that Mrs Asibor had been in England in January, 2006 and that she had been in Nigeria with her daughter Omo between May and June, 2006 during which period her second child Lilian was conceived. Mr Asibor admitted that he had “made various claims which were not true.” This applied to all the processes of his application for refugee status. He then, in a supplemental affidavit, extended this admission to making untrue statements to his application for subsidiary protection. He admitted that he was in the State to reunite with his family and stated that he had no money, no education and no prospects for work in Nigeria and was financially dependent on his wife. These matters were not before the Minister when his application for leave to remain was being considered.

9. The Refugee Legal Service (RLS) made representations to the Minister on behalf of Mr Asibor, seeking leave to him to remain in the State. Those representations were made over a period of almost a year and were furnished by letters dated the 20th September, 2007, the 23rd October, 2007 and the 7th August, 2008. Those representations are summarised below.
The RLS Representations
10. The Court notes that the representations made by the RLS in the Asibor case follow in format and general content those which were furnished in the Alli case. Each of the relevant matters set out in s. 3(6) of the Immigration Act 1999 was addressed. The particular family circumstances were that Mr Asibor was then 37 years of age and was in the State for a period of 9 months. He married in 2000 and had two daughters born in Ireland in 2003 and 2007. His wife had leave to remain based on her parenthood of Omo from September, 2005. She had been living in the State since then and the family lived in Limerick between then and 2008. Mr Asibor and his family attend the Pentecostal Church of the Redeem Church of God Mission in Limerick. It was submitted that Mrs Asibor and her daughters (then aged almost four and seven months) had integrated well into Irish society. In 2007, the Minister was informed that Omo was attending playschool in Limerick and was progressing well. Lillian was looked after by Mr Asibor and he collected Omo from playschool while his wife attended classes in “Care for the Elderly” in Limerick. It was stated that Mr Asibor would not have the means to care for his daughters if he were returned to Nigeria.

11. It was stated that Mr Asibor had not attended school at all but worked for several years as a trader of CDs and DVDs in Nigeria. He would be willing to accept any form of employment offered to him should he be allowed to remain in Ireland, and he would be able to contribute to society as a whole. He was eager to attend adult education classes to enable him to compete for job opportunities, and he spoke English and Orobu fluently. He was of good character and had never come to the adverse attention of the Gardaí.

12. The following submission was made as to Mr Asibor’s ties to Ireland :-

“Our client instructs that since arriving here he has been warmly received by those with whom he has come into contact. He has integrated extremely well into the community and is held in the highest regard.”
13. An identical submission was made in the case of Mr Kabir Alli. Also as in that case, the RLS outlined Ireland’s obligations under Article 8 of the European Convention on Human Rights (ECHR) and under Articles 3.1 and 3.2 of the UN Convention on the Rights of the Child and made submissions as to risk of treatment contrary to Article 3 ECHR and refoulement in Nigeria. It was submitted that:-
“Our client believes that his presence in the state is absolutely necessary to ensure his wife can continue her course and that he can continue to help her in raising their two young daughters.”
14. It was further submitted that:-
“Our client instructs that his wife has indicated that she is not prepared to return to Nigeria with her children in the event that our client is subject to a deportation order. Our client instructs that his wife’s primary consideration is to the well-being of her children who are settled with their local community in Limerick. The children have no connection with Nigeria and Omo is an Irish citizen.”
15. In addition the following submission was made:-
“It is respectfully submitted that the necessary protection and care for the well-being of our client, and his family life with his wife and daughters can be guaranteed only by the Minister taking the administrative measure of granting him humanitarian leave to remain in the State. Should our client be refused such leave to remain, it would be breach of Ireland’s international obligations, as well as contrary to natural justice, as there would exist a serious risk that our client would be subjected to harm, ill-treatment and neglect. Should our client be returned to Nigeria, the family would be separated and Mr Asibor has instructed that he fears for the well-being of his wife and children.”
16. The RLS referred to the following COI reports:
? U.S. Department of State report on Nigeria (2005);
? Human Rights Watch report on Nigeria (2007)

? BBC Online article EU Monitors to avoid Niger Delta (22nd March 2007)

? IRIN News article Nigeria: Militants free foreign oil workers but vow more attacks (30th January, 2006)

? Amnesty International Human Rights Report (2007); and

? UK Home Office COI report for Nigeria (2006)

17. Many documents were appended to the submissions, including a marriage “announcement” from Warri, Delta State; letters from the family’s current and former landlady in Limerick; a letter from the rector of the Augustinian Church in Limerick, stating that Omo was christened there; a further letter from the pastor in charge of the Redeemed Christian Church of God of his Glory parish in Limerick confirming that one of the Asibor children was baptised there; letters from their GP and a family friend and a letter confirming that Mr Asibor had attended basic computer classes.
18. Mrs Asibor furnished two written statements outlining her need for Mr Asibor in the proper upbringing of the children. She said:-

“I think it is very important to have a father figure in the children’s lives. At present he takes our daughter to school every day and picks her up in the afternoon. He supports me in every way in the running of the house and in the care of the children. Our children love their dad and it would be devastating if he could not stay in Ireland and be a part of their lives. I hope you will consider my request and allow him to stay in Ireland on humanitarian grounds. If he returns to Nigeria his life will be in danger and my children and I can not see a future without him.”
19. On the 7th August, 2008 the RLS forwarded further documents to the Minister including a further written statement by Mrs Asibor, stating that she needed Mr Asibor for the proper upbringing of the children. If her husband was returned to Nigeria she and the children would miss his invaluable role in the family and his contribution to domestic chores and childcare. His life would be in danger in Nigeria and she and the kids would not be able to live without him. His removal from the State would have a negative impact on the children because they would be deprived of a gratuitous education and good life. She furnished a letter from her employer, Sodexo Ireland in Cork stating that she had been with them for three months and they hoped she would stay with them for the long term future. The terms and conditions of her employment (dated the 10th March, 2008) indicating that she worked 22.5 hours per week together with three of her payslips were enclosed.1

THE EXAMINATION OF FILE
20. An officer of the Repatriation Unit examined Mr Asibor’s file on the 14th January, 2009. This was not the same officer who had examined Mr Alli’s file the previous day. The examination of file took the same format as in Mr Alli’s case and, as in that case, the examining officer had before her Mr Asibor’s asylum application file, the s. 13 report prepared by the Refugee Applications Commissioner and the decision of the Refugee Appeals Tribunal. The examination of file extended over 15 pages. The analysis was carried out using the following headings:-

? Section 3(6), Immigration Act 1999;
? Section 5, Refugee Act 1996;

? Section 4(2), Criminal Justice (UN Convention Against Torture) Act 2000;

? Article 8, European Convention on Human Rights; and

? Constitutional rights of the Irish born (citizen) child.

21. The examining officer recommended that the Minister make a deportation order in respect of Mr Alli. Her recommendation was affirmed by an Executive Officer, a Higher Executive Officer, the Assistant Principal of the Repatriation Unit and finally the Minister. The examination of the file pursuant to s. 5 of the Act of 1996 and s. 4(2) of the Act of 2000 is not relevant to this application, apart from an observation made that credibility issues arose in Mr Asibor’s claim for asylum. What is relevant is the consideration given to s. 3(6) of the Act of 1999, Article 8 of the ECHR and the constitutional rights of the citizen child, which are summarised below.
Section 3(6), Immigration Act 1999
22. As in the case of Mr Alli, the Minister had regard to each of the factors set out at s. 3(6) of the Act of 1999 as they were on the date of the examination. Mr Asibor was 39 years of age and by January, 2009 he had been in the State for approximately two years and one month. It was noted that although he had given his date of birth as the 19th December, 1969, his passport recorded that he was born on the 16th December, 1969. No further comment was made on that discrepancy.

23. Mr Asibor’s family and domestic circumstances were fully and accurately noted. It was stated that his connection with the State lay in his application for asylum and his parentage of two children born in Ireland. It was noted that there were no educational details on the file and that according to the applicant, he had been self employed in Nigeria as a trader, selling CDs and DVDs. He was not entitled to work in Ireland and “If he was permitted to work, his prospects of obtaining employment would be poor in the current economic climate.” No adverse comments were made on Mr Asibor’s character or conduct and it was noted that there were references on file from friends and acquaintances who attested positively to his character.

24. With respect to the “humanitarian considerations” on the file his family circumstances were again summarised and it was noted that his wife had submitted in her personal statement that he played an important role in the lives of the children. It was noted that he had submitted his passport, boarding cards and travel tickets and that his wife had submitted payslips and her contract of employment. It was concluded that there was nothing in the humanitarian considerations on the file to suggest that he should not be returned to Nigeria.

25. The examining officer summarised the submissions made by the RLS on behalf of Mr Asibor accurately and at length but without comment. Under the heading “The Common Good” it was stated, as in the case of Mr Alli, that “It is in the interest of the common good to uphold the integrity of the asylum and immigration procedures of the State.” It was also noted that considerations of national security and public policy had no bearing on the case.
Article 8, ECHR
26. The officer accepted that if the Minister made a deportation order, this would engage Mr Asibor’s right to respect for his private and family life under Article 8(1) ECHR but she found that the interference with his right to respect for his private life would not have consequences of such gravity as to engage Article 8. That conclusion is not challenged. The applicants’ arguments centre instead on the examination of the proportionality of the interference with his right to respect for his family life.

27. The officer noted Mr Asibor’s family circumstances: his marriage, his two children, his wife’s leave to remain under the IBC/05 scheme until 01/09/2010, the fact that Omo who was born in 2003 is a citizen and that Lilian who was born in 2007 is not an Irish citizen but is entitled to citizenship of Nigeria. It was accepted that the deportation of Mr Asibor would constitute an interference with his right to respect for his family life within the meaning of Article 8(1) but, as in the case of Mr Alli, it was submitted that the deportation would:-

(1) Be in accordance with law (pursuant to s. 3 of the Act of 1999);
(2) Pursue a pressing need and a legitimate aim (“i.e. the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. It is consistent with the Minister’s obligations to impose these controls and is in conformity with all domestic and international legal obligations”); and

(3) Be necessary in a democratic society, in pursuit of a pressing social need and proportionate to the legitimate aim being pursued within the meaning of Article 8(2).

28. The officer then considered the proportionality of the deportation, commencing her analysis in the same way as the officer proceeded in the Alli case, with the following statement:-
“In R (Mahmood) v. Home Secretary [2001] 1 WLR 840, the U.K. Court of Appeal found, inter alia, that the removal or exclusion of one family member from a State where other members of the family are lawfully resident, will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.”
29. The officer then noted that the citizen child, Omo, was born in the State in 2003 and was now five years old and attending play-school in Limerick. It was not known if she had commenced primary school. Being 5 years of age she was “of an adaptable age” and it could reasonably be expected that she could reside in Nigeria with her parents and sibling and could integrate into society there. She was entitled to Nigerian citizenship. As in the Alli case, it was concluded that:-
“having taken into consideration the personal circumstances of the Irish citizen child and her father, in particular the young age of Omo Edna Asibor, there is nothing to suggest that there are any insurmountable obstacles to the family being able to establish family life in Nigeria.”.
30. Still under the heading “proportionality” the officer went on to note Mr Asibor’s submission that he has parental responsibilities to his children which he wishes to perform to the best of his abilities, and that those obligations necessitate his presence in the State in order to be fully discharged. It was noted, however, that the Minister is not obliged to respect Mr Asibor’s choice of residence.
31. The examining officer next noted that Mr Asibor’s child has a constitutional right to the society of her father but that the jurisprudence of the European Court of Human Rights (ECtHR) has established that a State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations. In addition, the officer noted the following matters (which were also noted in the Alli case):-

? Although Mr Asibor stated that he was anxious to undertake full time employment in Ireland, his prospects of obtaining employment would be poor in the current economic climate;
? The grant of permission to remain to Mr Asibor would have an impact on the health and welfare systems of the State, and may lead to similar decisions in other cases;

? Mr Asibor did not take up his parental responsibilities in the State until December, 2006 at which time his daughter was almost three years old. His family existed without his presence in the State during this time; therefore if Mrs Asibor was to decide to stay in Ireland with her children, “the disruption to their family life would not have the same impact as it would have had they been living as a family unit for a much longer period.”

32. Having noted each of those matters she reached the following conclusion:-
“Lovis Asibor has been given an individual assessment and due process in all respects. Having weighed and considered all of the above factors outlined above relating to the position of the family, and in particular Omo Edna Asibor who is an Irish citizen child, as well as the factors relating to the rights of the State, it is submitted that if the Minister makes a deportation order in respect of Lovis Asibor, there is no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. This therefore exists as a substantial reason associated with the common good which requires the deportation of Lovis Asibor.”

Constitutional Rights of the Irish Born Children
33. The officer noted the following matters:
? Omo Edna is a citizen and has personal rights under Article 40 of the Constitution and further rights under Articles 41 and 42, including the right to reside in the State, to be reared and educated with due regard to her welfare, to the society, care and company of her parents, as well as protect of the family pursuant to Article 41;
? She is attending play-school;

? The constitutional rights of the citizen child are not absolute and must be weighed against the rights of the State;

? The rights of the State include the right to control the entry, presence and exit of foreign nationals subject to the Constitution and international agreements. To be considered as issues of national security, public policy, the integrity of the Immigration Scheme, its consistence and fairness to persons and to the State, as well as issues relating to the common good.

34. The officer then set about balancing the competing interests she had identified against one another. She once again acknowledged that Omo Edna has constitutional rights but noted that according to the Supreme Court in Lobe and Osayunde [2003] IESC 3 (also known as A.O. and D.L. [2003] 1 I.R. 1), it does not flow from those rights that the family or parents and siblings of the children have the right to reside in the State. As was done in the Alli case, she set out the position as follows:-
“The Minister may determine to deport the immigrant family, notwithstanding the effective removal of the Irish citizen child, without violating that child’s rights. While there is an obligation on the Minister to consider each case on its individual merits, he is entitled to take into account the consequences of allowing a particular applicant to reside in the State where that would inevitably lead to similar decisions on other cases. If the Minister is satisfied for good and sufficient reason that the common good requires that the non-national parent should be removed from the State, even if that means that in order to preserve the family unit the Irish citizen child must also leave the State, then that is an order he is entitled to make.”
35. The officer reiterated her previous conclusion, as follows:-
“All factors relating to the position and rights of Omo Edna who is an Irish citizen, have been considered above and these have been considered against the rights of the State. In weighing these rights, it is submitted that if the Minister makes a deportation order in respect of Lovis Asibor, there is no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. This therefore exists as a substantial reason associated with the common good which requires the deportation of Lovis Asibor.”
36. The officer concluded that having considered all of the facts relating to the position of the family and the citizen child, “there is nothing to suggest that there are any insurmountable obstacles to the family being able to establish a family life in Nigeria”. As was the case in Alli she repeated the conclusions set out above verbatim and she recommended that the Minister make a deportation order against Mr Asibor.
THE ISSUES IN THE CASE
37. Mr Finlay S.C., counsel for the applicants, formulated the grounds on which the applicants seek relief in a manner which differed slightly from those argued in Alli although the difference was more in emphasis rather than substance. As in Alli, the first ground related to the use of the “insurmountable obstacles” test. While the evolution in the approach of the U.K. courts to the principles set out in R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840 was examined Mr Finlay’s primary focus was on the Supreme Court judgment in Oguekwe v. The Minister for Justice, Equality and Law Reform [2008] 2 I.L.R.M. 481 which, he argued, clearly stated that the question for the Minister when considering the deportation of the foreign national father of a citizen child is whether it would be reasonable to expect the family members to accompany him to the country of origin and not whether insurmountable obstacles prevent their joining him. He argued that there is a clear and significant distinction between the “reasonableness” and “insurmountable obstacles” tests as the latter sets a much higher hurdle or threshold for the family than the former.

38. The second ground was that the Minister failed to comply with the directions given by the Supreme Court in Oguekwe insofar he omitted to give any real consideration to the consequences of the deportation for the citizen child and the other members of the family. The Minister should have engaged in a serious way with those consequences by considering both the impact for the mother and children if they were to move to Nigeria with Mr Asibor and if they remained in Ireland without him. A feature of this case that distinguishes it from the Alli case is that in this case, the Minister neglected to note the mother’s intention to remain in Ireland with the children whereas that was a matter that was expressly noted in the Alli case. He should have expressly considered whether she would be able to continue working without her husband’s support and the impact that would have for the citizen child who has established very clear roots in the community.

39. The third ground was that the Minister failed to identify a significantly strong or weighty “substantial reason” which counterbalanced the constitutional and Convention rights of the family and thereby required the deportation of Mr Asibor. Immigration control was too general to be a “substantial reason” in the particular circumstances of the case. While the “substantial reason” does not have to be applicant-specific and general policy considerations may suffice, Mr Finlay argued that the mere recital of the “mantra” that the State has an interest in immigration control is not sufficient unless the Minister properly weighs that interest against the interests of the children and the family.

40. The final ground, which is very much linked to the second and third grounds, was that the Minister failed to reach a reasonable and proportionate decision. He failed to weigh the competing rights and interests of the child, the family and the State. The Minister’s recitation of those rights was in standard form which disclosed no serious consideration or engagement. A more sophisticated analysis was required.

41. Ms Moorhead S.C. on behalf of the Minister addressed the arguments of the Alli and Asibor arguments in a joint submission. Her submissions are summarised in the Alli judgment.
THE COURT’S ASSESSMENT
42. The applicants’ legal arguments in the Alli case on the subject of “insurmountable obstacles” did not differ in any substantial way from the arguments advanced on that issue in the Asibor case. There is therefore little benefit in repeating the analysis carried out in the Alli case on that argument in circumstances where the applicants’ arguments on that ground failed. The same applies to the applicants’ arguments as to the requirement to identify a “substantial reason associated with the common good” which requires the deportation of the father. The Court found in the Alli case that it was firmly decided by the Supreme Court in A.O. and D.L. that it is not the case that a reason specific to the applicant’s circumstances must be identified, and that general policy considerations will suffice as a “substantial reason” provided that the Minister has carried out a fact-specific analysis in the applicants’ case and has engaged in a proper balancing exercise.

43. As is clear from the above synopsis, the same “substantial” reason was identified in this case as in the Alli case i.e. that there is no less restrictive process than deportation which would achieve the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. In the Alli case this Court rejected the applicants’ arguments in relation to the sufficiency of this reason and it follows that the applicants’ arguments in this case must also fail.

44. The only remaining argument that requires consideration in the light of the facts and circumstances of the Asibor case is that the Minister failed to comply with the judgment of the Supreme Court in Oguekwe. The applicants’ arguments on this issue in this case differed in emphasis but not in substance from the arguments advanced on behalf of Mr Alli which were analysed at length in the judgment of this Court in that case. A comparison of the RLS submissions and the examination of file in the two cases disclose only insignificant differences. The Court has addressed the Minister’s decision in the case of the Asibor family separately to the decision in the case of the Alli family in order to avoid confusion between the circumstances of the two families which overlap to a great extent. In each case the Minister declined to accede to the application for leave to remain, and made a deportation order against the father of citizen children. Although the legal principles remain the same in both cases, the proportionality and reasonableness of a decision will of necessity depend on the particular facts and circumstances of the case. The proportionality of the Minister’s decision to make a deportation order against Mr Asibor therefore requires separate consideration to the Minister’s decision in the Alli case.

45. The information before the Minister in this case was that the citizen child, Omo Edna Asibor, lives with her mother and younger sister who are foreign nationals and are lawfully resident in the State. The Minister was aware that the consequence of the deportation of her father, Mr Asibor, would be that the family would be ruptured because Mrs Asibor, in common with Mrs Alli, stated that it was her intention to remain in the State with her children until at least 2010. The Court does not accept that it follows that because that intention was not recited expressly during the examination of Mr Asibor’s file pursuant to s. 3(6) of the Act of 1999 that the Minister was unaware of that intention. In the second paragraph of page 12 of the examination of file, the examining officer noted that “if Lovis Asibor’s spouse were to decide to stay in Ireland with the children, the disruption to their family life would not have the same impact as it would if they had been living together as a family unit for a much longer time.” The inference must be that the mother’s stated intention to remain in Ireland with the children was considered as part of the analysis and that the Minister was aware of that intention and, therefore, of the consequences of his decision to deport Mr Asibor.

46. As with the Alli family, serious consideration must be given to the fact that a mother such as Tina Asibor had the emotional and physical resources to travel alone to Ireland from Nigeria while pregnant and then to give birth without the assistance and presence of her husband not once but twice and then to raise them in an alien country for three years without that husband. When such a woman who is finally joined by her husband, who undoubtedly provides assistance in the care, nurture and upbringing of those children, states that she intends to remain in the State without her husband if he is deported, it must be assumed that she has considered her options and concluded that it is in the children’s best interests not to follow him. That is, of course, a decision that she is entitled to make. However it is she who has chosen to follow that path, not the Minister who has to consider whether to deport such a father is, in all the circumstances, both reasonable and proportionate.

47. While the Minister has to carry out an assessment of the individual merits of each case that comes before him, the Court has had the opportunity to see and review both the representations made under s. 3(6) for leave to remain and the examination of the file carried out by and on behalf of the Minister in the Alli case and in this case. The Court is therefore well placed to comment that the circumstances and facts made known to the Minister in relation to the Asibor family, where all members of the family are Nigerian save the citizen child who has of course been raised as part of a Nigerian family. The Court finds that those facts and circumstances disclose somewhat weaker grounds for resisting the deportation of the father than in the Alli case in that there are even fewer obstacles to the family returning to Nigeria and continuing family life there than there were in the Alli case where the mother and stepchildren claimed to be from a different country to the father who was from Nigeria, and they claimed that they had never been to Nigeria.

48. As the Minister is not obliged to respect the choice of residence of a foreign national couple who come to this country without complying with Irish visa requirements, even if that family includes a citizen child, it is open to him to approach the question of the deportation of the parent who has is unlawfully present in the State by asking whether in this family’s particular circumstances, it would be reasonable to expect those family members living in the State to return with the father to his country of origin, in this case Nigeria. As the Court noted in the Alli case, it is clear from the jurisprudence of the European Court of Human Rights that among the primary matters for consideration when examining that question are the ages and adaptability of the children, the length of time spent in the Contracting State, the extent to which the family has integrated into society in the Contracting State, the duration and strength of the family bonds, and the extent to which the family has connections with the country to which the deportee is being returned.

49. The Asibor family unit cannot be said to have established firm roots in the Irish community such that it would be unreasonable to expect them to return to Nigeria if they wish to remain together as a family unit. They lived for a time in Limerick and then moved to Cork. The citizen child attended playschool in Limerick before moving to Cork and the Minister assumed (although he was not informed) that she then commenced school in Cork. The younger child Lilian, who was born in February, 2007 is even now still too young to attend school. In the 2007 representations, the Minister was informed that Mrs Asibor attended night classes in Limerick but in the 2008 submissions he was notified that she had taken up employment in a factory in County Cork. Thus they have not been present in Ireland for very long much less have they been resident in any one community for an appreciable length of time.

50. Both Mr and Mrs Asibor and Lilian are nationals of Nigeria. Omo Edna, the Irish citizen child, is also entitled to Nigerian citizenship. The applicants did not put any material before the Minister suggesting that they would not be able to move to Nigeria and establish family life there. For example no information was submitted about the language(s) spoken by the children. Thus it was reasonable for the Minister to conclude that there were no insurmountable obstacles to their returning together to continue family life in Nigeria and that it was not unreasonable to expect them to return to Nigeria to enjoy family life there. As is clear from the analysis in the Alli case, the judgment in Oguekwe and the jurisprudence of the European Court of Human Rights on the Article 8 rights of persons who seek to resist deportation or expulsion demonstrate that the Minister acted in accordance with law when he assessed the proportionality of the decision to deport Mr Asibor by reference to those questions.

51. Although this was not a matter that was before the Minister when he was examining Mr Asibor’s file, the Court cannot close its eyes to the fact that it has been revealed in the course of the proceedings that Mrs Asibor and the citizen child, Omo, returned to Nigeria on at least one occasion since 2003 on a holiday that was paid for by Mrs Asibor’s mother. It must be assumed that Omo met her grandmother and probably other relatives on that visit. Thus it is simply not the case that the citizen child has no links to Nigeria, as was submitted on behalf of the applicants in the course of the s. 3 representations. Although this was not before the Minister, it reinforces the Court’s view as to the reasonableness and rationality of his decision that there is nothing to prevent the family from returning to Nigeria if they wish to maintain family life with Mr Asibor.

52. In circumstances where the Court has found that the applicants in the Asibor case would encounter fewer difficulties in moving to Nigeria with Mr Asibor if he were deported than the applicants in the Alli case, little would be gained from reiterating the analysis in the Alli case. The Court has found that the Minister carried out a sufficiently fact-specific analysis, weighed each of the relevant considerations appropriately and balanced them against each other in accordance with the requirements of Oguekwe. It cannot be said that his decision in either case was unreasonable or disproportionate.

53. In the light of the foregoing and on the basis of the analysis carried out in the Alli case, the Court is satisfied that the applicants are not entitled to the reliefs sought. The application fails.

____________________________________________________________________________________________________________________________________________________

1 The Court was informed during the injunction proceedings that Mrs Asibor is now employed on a full time basis. That information was not before the Minister at the time of the impugned decision.

Olaniran & Ors -v- MJELR & Ors

[2010] IEHC 83 (16 March 2010)

High Court Record Number: 2009 373 JR

Date of Delivery: 16/03/2010

Court: High Court

Composition of Court:

Judgment by: Clark J.

Status of Judgment: Approved

 

Neutral Citation Number: [2010] IEHC 83

THE HIGH COURT
JUDICIAL REVIEW

2009 373 JR

 

BETWEEN

OLUWABUNMI OLANIRAN, INIOLUWA “FAVOUR” OLANIRAN (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND OLUWABUNMI OLANIRAN), ERIOLUWA “MARVELLOUS” OLANIRAN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLUWABUNMI OLANIRAN) AND TEMILOLUWA OLANIRAN (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLAUWABUNMI OLANIRAN) [NIGERIA]
APPLICANTS
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

JUDGMENT OF MS JUSTICE CLARK, delivered on the 16th day of March, 2010
1. The applicants, who are a mother and her three minor children, are nationals of Nigeria. They seek leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform, dated the 23rd February, 2009, to make deportation orders against the second and third named applicants who were born in Ireland in 2005 and 2007 respectively. Deportation orders have already been made against the mother and her first son.

2. The hearing took place on the 3rd March, 2010. Mr Garry O’Halloran B.L. appeared for the applicants and Mr David Conlan Smyth B.L. for the respondents.
Background
3. The first applicant (“the mother”) was six months pregnant when she applied for asylum on the 16th February, 2005. Her son T. (the fourth applicant), who was born in Lagos in 2003, was included as a dependent under her application. Although she submitted no identity documentation she presented as a well educated woman of Yoruba ethnicity, born in 1973 in Lagos where her parents continue to live. She claimed that she graduated in 1994 with a Higher National Diploma in Secretarial Studies from Federal Polytechnic in Ogun State and then two years later she passed the Final Examination of the National Diploma in Secretarial Administration, also in Ogun State. In November, 2000 she married her husband who has a BSc in Economics and his own travel agency business.

4. She claimed to fear persecution at the hands of her husband’s family. Her account was that when pregnant with her second child, her second scan at the clinic used by the family confirmed that she was carrying a girl. It was the tradition within her husband’s family that all mothers carrying a girl baby would be genitally circumcised. Her husband was on a business trip in a village in Calabar State for three months starting from the 1st January, 2005. She did not know the name of the village he was working but was aware that there was no phone contact available and that she was unable to contact him. One day ten men from her husband’s family arrived together at her house, forcibly abducted her and took her to a shrine where they stripped her naked and chained her hands and feet. They then left to find her husband’s uncle who, as the head of the family, would carry out the procedure. When alone, she removed the chains and walked to her Pastor’s house where her son was staying. She did not contact the police nor did she attempt to relocate because she did not know where or to whom she should run. Tradition did not allow for a married woman to go back to her family and she did not know anywhere else in Nigeria. She had to go somewhere her husband’s family could not trace her so the Pastor organised for her and her son to travel with him to Ireland via the Netherlands. He made all the arrangements.

5. The Refugee Applications Commissioner did not find this narrative convincing and a negative recommendation was made in March, 2005. That recommendation was affirmed by the Refugee Appeals Tribunal (Ms. Michelle O’Gorman). Both decision-makers made a series of negative credibility findings. Deportation orders were made against mother and son in September, 2005 which were not challenged. Meanwhile on the 19th April, 2005 the mother gave birth to her daughter, the second applicant, in the State. At an unspecified date later that year her husband joined them in Ireland. There are no details available of how and when he arrived or of his mode of entry into the State. He has never applied for asylum and has been illegally in the State since 2005. He is not a party to these proceedings. In September, 2007 the mother gave birth to their second son, the third named applicant. Both of the children who were born in Ireland have birth certificates which indicate that their father was in Nigeria at the time of their birth.
The Children’s Asylum Applications
6. In December, 2007 the mother made individual applications for asylum on behalf of her daughter and younger son (the second and third applicants). She claimed to fear that she and her daughter would be subjected to FGM in Nigeria and that if she died, there would be no-one to look after her younger son. The infant children’s questionnaires state that their father was in Ogun State, Nigeria but at their s. 11 interviews the mother disclosed that he was in fact in Ireland illegally. She said he was also being persecuted in Nigeria but had not applied for asylum because he did not want to be deported. The mother said that she and her daughter could die as a result of circumcision and her husband’s family would not accept or take care of his younger son and would regard him as an outcast. They could not return to live with her parents in Lagos because in their culture, once a girl is married she must stay with her husband’s family. In any event her in-laws know where her parents live and they could employ people to find her. NGOs could not help and she had no available options to stay with her siblings because they are young and still in school. She said “Nigeria is a very small place. I fear that I would be located”.

7. The minor applicants’ cases failed before ORAC and the RAT. Both of those statutory bodies relied on extensive country of origin information (COI) to the effect that the practice of FGM has declined steadily in recent years, that the federal government publicly opposed FGM but took no legal action to curb the practice, that individual states including Ogun State had banned the practice and that most women resort to relocating if they do not wish to undergo FGM. It was concluded that bearing in mind the COI, the mother had not offered any credible evidence that it would be unduly harsh for her to go to a different region in Nigeria, far from her in-laws, that it would not be feasible for them to trace her in a country so vast and that the alleged threat could be avoided by severing contact with her in-laws.

8. The Commissioner’s recommendations were affirmed by the Refugee Appeals Tribunal (Ms. Michelle O’Gorman) in April, 2008. By reference to COI the Tribunal Member gave extensive consideration to the measures undertaken to combat the practice of FGM. She assessed the possibility of internal relocation by reference to the size and population of Nigeria and the applicants’ personal circumstances, particular their parents’ educational qualifications and the husband’s ability to travel within Nigeria without being contacted by his wife or family when she was in difficulty. The Minister refused to grant refugee status to the children and proposed to deport them.
The Leave to Remain Application
9. On the 8th September, 2008 the applicants’ solicitors applied for leave to remain on behalf of the second and third named applicants. The representations in support of that application, being notably brief, merit quotation in full:-

“Application for humanitarian leave to remain in the State pursuant to Section 3 of the Immigration Act 1999
Dear Sirs,

We refer to yours of the 12th June and the 20th June last in respect of the above named. [I.F.O.] was born on the 19th April, 2005 and [E.M.O.] was born on the 10th September, 2007, both in Ireland. Copies of their Birth Certificates are attached herein.

Medical Issues:

[E.M.O.] was diagnosed with sickle cell anaemia in Cavan Hospital in late November, 2007 and we enclose herein a copy of a letter from The Berkley Clinic, dated the 27th November, 2007 as confirmation of same.

Mother [O.O.]

We would ask that you specifically consider the case of the children in the context of their mother’s activities and position in the State at present.

[O.O.] has been the voluntary secretary of the outreach centre of Epignosis Training in Galway and a letter from the Director of the Centre attest that he finds her honest, loyal and committed. Ms [O.O.] is the Chairperson of the Lisbrook Childcare Committee and a letter from the Community Development Worker of the Galway City Partnership confirms that Ms. [O.O.] is working hard to provide activities for their children and their mothers. The letter further opines that Ms. [O.O.] could contribute greatly to the community and society at large. A letter from The Childminder Advisory Committee also attests that with Ms. [O.O.]’s assistance training events and pre school services have been arranged. Ms. [G.] states that she has found Ms. [O.O.] to be a positive, energetic and accomplished woman who is volunteering on behalf of her community to enhance their current living situation for the adults and children within Lisbrook House.

It is clear that Ms. [O.O.] is motivated, educated and has a will to be a valuable economic and social contribution to the State. She is held in very high regard within her local community. A wealth of references are attached to this end, including:

1. Letter from Ms [S.K.] of the Galway Refugee Support Group;

2. Letter from Ms. [S. Nic L.] who confirms that our client is a constant source of support to staff and residents;

3. Letter from Ms. [K.D.], Manager of Lisbrook House, which states that our client has taken on a lot of responsibility regarding the children in Lisbrook House and is in charge of organizing meetings; that she has the zeal of contributing positively to the community.

`Ms. [O.O.] has made every effort to further educate herself in Ireland which a view to obtaining viable employment here. To this end, we attach 3 Certificates which our client was awarded for participation in various Community Development workshops.

It is submitted that, on the basis of the foregoing, that our client is of exceptional character and one to which the granting of leave to remain is warranted.

Yours etc.”

10. Appended to the letter of the 8th September was a series of fulsome and complimentary letters testifying to the mother’s voluntary activities which were indicative of a capable and caring organiser. A letter which had previously been before the Refugee Appeals Tribunal confirming the younger son’s diagnosis of sickle cell anaemia was also appended together with certificates confirming various training programmes completed by the mother.
11. Additional supporting documentation was furnished on four different dates including a letter from a local T.D. indicating that the applicants were likely to make a contribution to Irish society, that the children’s mother had already had an impressive record of volunteering and public service, that that the mother had a number of qualifications from Nigeria and was a member of the residents’ association and children’s committee at Lisbrook House, and that he had been very impressed by her and her children when he interviewed her at his advice centre. Also appended were letters of support from a HSE Community Welfare Officer and a Western Alliance Regional Development Officer.
The Leave to Remain Decisions
12. The files of the second and third named applicants, who were aged one and three respectively, were individually examined by different officers of the Repatriation Unit. In each case the child’s biographical, family and domestic circumstances were summarised accurately. The submissions made and the supporting documentation was outlined. Under humanitarian considerations, it was noted that the children are entitled to citizenship of Nigeria and that the younger son had been diagnosed with sickle cell anaemia at 10 weeks of age. It was stated that having considered the humanitarian information on file, there was nothing to suggest that either child should not be returned to Nigeria.

13. Under s. 5 of the Refugee Act 1996, the claim made to the asylum authorities by the mother and the children was summarised. In that consideration a number of extracts from a U.K. Home Office COI report on Nigeria (December, 2008) were summarised, addressing geography; the Constitution; the Police Force; human rights institutions; organisations and activists; FGM and internal relocation, children (including FGM), freedom of movement, exit-entry procedures, treatment of returned failed asylum seekers and citizenship and nationality. The section on FGM noted that Ogun State, among others, had banned the practice of FGM and that despite financial and logistical obstacles, public awareness projects to educate communities about the hazards of the practice were sponsored by the Ministry of Health, women’s groups and NGOs. In relation to internal relocation the Home Office extract referred to a British-Danish Fact Finding Mission report (2008) which quotes women’s NGOs as stating that internal relocation is possible for any adult woman irrespective of whether the case is about FGM, domestic violence or forced marriage and that UNIFEM stated that in theory, it is not difficult for a woman to relocate in Nigeria. While women prefer to go to friends or relatives than to a shelter when there are no other alternatives, women will seek protection in a shelter as a last resort and more than 50 organisations are able to refer a woman to an available shelter in Nigeria including specific shelters in Lagos and Abuja. In the extract dealing with children and FGM, reference was made to a 2005 OMCT report of the UN Committee on the Rights of the Child which noted the health risks attendant upon the practice of FGM and stated that a bill banning FGM was going through the houses of parliament but had not yet been adopted. While the ongoing existence of FGM is acknowledged efforts to combat it are undertaken and that due to public enlightenment and mobilisation efforts by groups of civil society, as well as increased enrolment of girls in schools, reported cases of FGM were diminishing but the practice remains widespread.

14. In the case of the son with sickle cell disease, an additional extract was quoted in relation to “medical issues” which addressed the availability of medical treatment and drugs. The extract refers to a Physicians for Human Rights report (2006) which outlined the public and private health systems in Nigeria and stated that there were regional disparities and inadequate funding and staffing. Reference was also made to the British-Danish FFM report (2008) which stated that hospitals suffer from poor funding, a lack of qualified medical staff, a lack of drugs and lack of medical treatment and that the governments do not provide free medical services but a new scheme started in 2007 would help to take care of medical expenses for many people. Despite the limitations of the health care system, a large number of diseases and conditions including sickle cell disease “can be treated”. Medical care must be paid for and private hospitals exist which provide a higher standard of medical care than public sector hospitals.

15. Reference was also made to information on the treatment of sickle cell anaemia compiled from a search undertaken by the Refugee Documentation Centre. It was noted that 24% of the Nigerian population are carriers of a mutant gene and that the prevalence of sickle cell anaemia at birth is about 20 per 1000 births. In 2007 President Obasanyo expressed worry about the incidence and ordered the setting up of a committee to advise the government on what to do to reduce the scourge of the disease in Nigeria. Medical treatment for persons suffering from the condition was available and medical and nursing professionals were available who were training to administer medical care to people with the disease but few people had access to the treatment and there was a shortage of professionals. At least four million Nigerians were suffering from it and about 80% died before the age of five. About 40 million Nigerians were carriers and by 2008, about 100,000 new births every year are sicklers.

16. Having set out these COI extracts it was found in each case that having considered all the facts of the case, the officer was of the view that repatriating the child to Nigeria would not be contrary to s. 5 of the Refugee Act 1996. In each case consideration was also given to s. 4 of the Criminal Justice (UN Convention Against Torture) Act 2000 and Article 8 of the ECHR and in the case of the younger son, consideration was also given to Article 3 of the ECHR by reference to his sickle cell condition. No issue is taken in relation to the conclusions reached in that regard.
Delay
17. These proceedings were issued 24 days after the expiry of the 14-day time limit set out in s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000. The mother says that that she immediately sought legal advice from her legal advisers and the delay was due entirely to the Court commitments of her solicitor and counsel. It was argued on behalf of the children that the delay arose through no fault of the applicants who therefore should not be penalised. The respondents resist the extension of time, relying on Jolly v. The Refugee Appeals Tribunal (Unreported, High Court, Finlay Geoghegan J., 6th November, 2003) where it was held that the Court may only consider extending time where a good and sufficient reason for the delay is averred to on affidavit. The explanation provided in the mother’s affidavit is hearsay and while the affidavit states that she “immediately” sought legal advice, she gives no dates and the Court is therefore left ignorant as to whether she formed the intention to challenge the decision within the requisite time period. In relation to lawyer delay the respondents rely on the decision of Denham J. in S v. The Refugee Appeals Tribunal [2002] 2 IR 163.
The Challenges to the Validity of the Decisions to Deport
18. The applicants made two net arguments. First, the Minister gave insufficient reasons for his conclusion that refoulement was not an issue and that such reason as he provided and the conclusion he reached on refoulement was irrational in the light of the COI considered. It was argued that, applying Meadows v. The Minister for Justice, Equality and Law Reform (Unreported, Supreme Court, 21st January, 2010), the Minister’s duty to consider refoulement is not diluted by the absence of representations on the subject as it is incumbent upon the Minister to take a holistic approach and consider the entire file before arriving at any conclusions.

19. Secondly, the Minister failed to consider best interests of the children as is required under the UN Convention on the Rights of the Child (CRC) to which Ireland is a signatory. This, it was contended, is a freestanding duty which exists even in the absence of representations on the interests of the children.
The Court’s Assessment
20. This being a leave application to which s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies, the applicants are obliged to establish substantial grounds of the contention that the impugned decisions ought to be quashed. It is well established that this means that grounds must be shown that are reasonable, weighty and arguable as opposed to trivial or tenuous. As the applicants delayed by 24 days after the expiry of the statutory time limit, it is also incumbent upon them to show good and sufficient reason for the Court to grant an extension of time.

21. The applicants’ delay, though relatively short, is close to double the time allowed under s. 5 of the Act of 2000 and the reason provided by the mother puts the blame on her legal advisers, which they accept is inadequate as a basis for the Court to exercise its discretion to extend time. However, the Court notes that the three minor applicants are of tender years and were entirely dependent on their mother to seek legal advice and issue proceedings within the statutory time limit. In those circumstances, a degree of latitute may be exercised in their favour. While the time limit is strict and must be upheld, the interests of justice require that the Court should consider all of the circumstances of the case, including the merits, before making a determination on the extension of time.
The Refoulement Argument
22. It is undisputed that before considering a deportation order the Minister is obliged to consider whether that proposed deportation would breach the prohibition of refoulement set out in s. 5 of the Refugee Act 1996. What is disputed is the nature and extent of the Minister’s obligation and whether the Minister’s assessment of refoulement in this case was reasonable and rational.

23. There can be little doubt that the extent of the Minister’s obligation to consider refoulement is, to a great extent, affected by the representations made on behalf of the failed asylum seeker. This principle was restated by Murray C.J. in Meadows when he stated:-

“In cases where there is no claim or factual material put forward to suggest that a deportation order would expose the deportee to any of the risks referred to in s. 5 then no issue as regards refoulement arises and the decision of the Minister with regard to s. 5 considerations is a mere formality and the rationale of the decision will be self evident.
On the other hand if such material has been presented to him by or on behalf of the proposed deportee, as the case here, the Minister must specifically address that issue and form an opinion.”

24. Murray C.J. distinguished the decision of Keane C.J. in Baby O v. The Minister for Justice, Equality and Law Reform [2002] 2 IR 169 on the following basis:-
“Keane C.J. did not refer to any material specifically relevant to refoulement, as distinct from humanitarian grounds, which were relied upon by the applicant at that stage. If there was no such material then the Minister’s decision on s.5 would have been one of form only and not required any rationale.”
25. Denham J. agreed in Meadows with the rational expressed by Murray C.J. in relation to the distinctions between Baby O and Meadows.
26. The Court is fully aware that no case was made in the representations to the Minister that the deportation of the second and third named applicants would breach s. 5 of the Refugee Act 1996 or Article 3 of the European Convention on Human Rights. The application for leave to remain focussed entirely on the humanitarian considerations arising from the mother’s undoubted contribution to Irish society by way of voluntary and community-based activities. An impressive series of warm and encouraging letters of support and recommendation was provided, attesting to the mother’s positive characteristics. Those representations, which were in the nature of an ad misercordiam plea, were considered by the Minister who found, in his discretion, that there was nothing in the humanitarian considerations on file to suggest that the children should not be deported. Although the applicants are dissatisfied with that decision, they have not pointed to any deficiency which could support the contention that the decision ought to be quashed. As was held by Clarke J. in Kouaype v. The Minister for Justice Equality and Law Reform & Anor [2005] IEHC 380:-

“The weighing of the various matters which […] have been loosely described as “humanitarian grounds” is […] entirely a matter for the Minister. In the absence of evidence that the Minister did not give the person concerned an opportunity to make submissions in accordance with the statute or did not consider those submissions, it does not seem to me that that aspect of the Minister’s decision is reviewable by the courts.”
27. It is accepted by the applicants that no representations were ever made where it was suggested that deportation of the children would expose them to a risk to their lives or freedom or to any form of serious attack nor was any country of origin information submitted suggesting such a risk. The fact of the younger son’s sickle cell anaemia was set out without expansion or comment. No information was provided on any treatment being received, if any. It was not suggested that he would not have access to medical care in Nigeria nor was it suggested that his family would be unable to pay for such medicines or treatments as may be required. The claim that mother and daughter would be at risk of female genital mutilation in Nigeria was not repeated.
28. While the leave to remain applications relied solely on humanitarian considerations which were confined to the mother’s valuable place in society, the Minister did address the refoulement issue. The details of the applicants’ asylum applications which were summarised by the examining officer were clearly obtained from the children’s asylum files. The Minister would, pursuant to s. 16(7) of the Act of 1996, have received the decisions of the Refugee Appeals Tribunal together with a copy of the Commissioner’s s. 13 reports and thus would have the entire asylum files available to him. The basis of the children’s asylum claims expressed through their mother that she and her daughter would be subjected to FGM and would die, leaving the younger son alone, was assessed by reference to up-to-date country of origin information reports sourced by the Minister. The Minister also referred to information compiled by the Refugee Documentation Centre on sickle cell anaemia in Nigeria.

29. The reasonableness of the Minister’s decision on refoulement must be assessed in the context of the facts that were before the Minister. According to the information contained in the asylum files, the children’s mother is well educated and worked in administrative positions before coming to Ireland in 2005. Her family live in Lagos, a good distance from the husband’s family in Ogun State. She had access to a clinic where she had scans during her first and second pregnancies. She provided no reasonable explanation as to why the family could not relocate in Nigeria rather than coming to Ireland. The explanations she did provide were rejected by the Refugee Applications Commissioner and the Refugee Appeals Tribunal not only in her own case but also in the cases of the second and third named applicants and as has been noted, those decisions were before the Minister. The situation is that if the fear expressed was real, then the availability of internal relocation as an antidote to their fear was identified in each of those decisions by reference to COI. Those decisions were not challenged by way of judicial review.

30. The COI referred to by the Minister clearly indicates that although a degree of initiative may be required, internal relocation is a viable option for women who seek to avoid FGM in Nigeria. The mother in this case is clearly capable of initiative as the many letters sent to the Minister describe her as dynamic, disciplined, energetic, hard working, educated and dependable. One letter of support indicates that “she will succeed in anything she may do in the future”. As the reasonableness of the Minister’s decision on refoulement must be assessed in the context of the facts that were before him there is no basis to suggest that there was anything unreasonable or irrational about his decision that refoulement was not an issue in this case. Again, it is important to note that very little was furnished in the way of submissions. The Minister made himself aware of the applicants’ personal history and claims from the files. He consulted up to date COI which supports the decision reached by the Commissioner and the Tribunal that if the applicants feared their father’s family, then relocation within Nigeria was a solution. He ultimately formed the opinion that the children’s lives or freedom would not be threatened in Nigeria on account of their race, religion, nationality, membership of a particular social group or political opinion and would not, therefore, breach s. 5 of the Refugee Act 1996.

31. The applicants have not established substantial grounds on the refoulement issue.
UN Convention on the Rights of the Child
32. The Court rejects the applicants’ contention that the Minister failed to adhere to the obligations set out in the UN Convention on the Rights of the Child (CRC). Ireland has signed and ratified the CRC but the Convention has not been incorporated into domestic law. Ireland has a dualist system under which international agreements to which Ireland becomes a party do not automatically become part of Irish law. This is clear from Article 29 of the Constitution which provides in its relevant part:-

“3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States. […]
6. No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”

33. The fact that Ireland is a signatory to the CRC confers no rights on individuals to rely on its provisions before the domestic courts nor does it impose any obligations on the Irish state to police the adherence of other states who are signatories to the same Convention to that instrument. As was stated by Fennelly J. in Kavanagh v. Governor of Mountjoy Prison [2003] 3 I.R. 97:-
“The Constitution establishes an unmistakable distinction between domestic and international law. The government has the exclusive prerogative of entering into agreements with other states. It may accept obligations under such agreements which are binding in international law. The Oireachtas, on the other hand, has the exclusive function of making laws for the state. These two exclusive competences are not incompatible. Where the government wishes the terms of an international agreement to have effect in domestic law, it may ask the Oireachtas to pass the necessary legislation. If this does not happen, article 29, section 6 applies.”
34. No representations were made to the Minister in this case that he ought to consider the provisions of the CRC or that he could not deport the children because it would be contrary to their best interests. The particular provision of the CRC that the applicants allege was breached was not identified in legal argument. As Clarke J. held in Kouaype, the Minister is obliged to consider the humanitarian and other factors set out in s. 3(6) of the Immigration Act 1999 only “insofar as they are known to him” and to have regard to any representations on those matters which are made by or on behalf of the person concerned. The Minister fully complied with that obligation in this case.
Conclusion
35. The Court is satisfied that the applicants have not established substantial grounds for the contention that the Minister’s decision to make deportation orders against the second and third named applicants ought to be quashed. The extension of time is therefore refused and it follows that leave is refused.

Adeniron & Ors -v- MJELR & Ors

[2010] IEHC 92 (18 March 2010)

High Court Record Number: 2006 1125 JR

Date of Delivery: 18/03/2010

Court: High Court

Composition of Court:

Judgment by: Clark J.

Status of Judgment: Approved

 

Neutral Citation Number: [2010] IEHC 92

THE HIGH COURT
JUDICIAL REVIEW

2006 1125 JR

 

BETWEEN

OLABISI ADENIRON, ADEBOLA ADENIRON (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLABISI ADENIRON), BOLANDE ADENIRON (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OLABISI ADENIRON), ATINUKE ADENIRON (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OLABISI ADENIRON) AND SOLOMON ADENIRON (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND OLABISI ADENIRON) [NIGERIA]
APPLICANTS
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 18th day of March, 2010
1. The applicants are nationals of Nigeria and members of the Yoruba ethnic group. The first applicant is the mother of the second, third, fourth and fifth applicants (“the children”) who are all minors. The second, third and fourth applicants were born in Nigeria in 1993, 1995 and 1998 respectively while the fifth applicant was born in Ireland in 2005. He is not an Irish citizen.

2. The mother and children have been in Ireland since March, 2005. They seek leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform (“the Minister”), dated the 11th August, 2006, to make deportation orders in respect of them.

3. The initial stages of the leave application took place on the 20th and 21st May, the 22nd June and the 1st July, 2009. At that time the Court refused an extension of time to challenge the decision of the Refugee Appeals Tribunal to affirm the recommendation that the applicants should not be granted refugee status and directed that the application for leave to challenge the Minister’s decision to deport the applicants should be heard together with the application of the father [2009 1204 J.R.], who claims to have joined his wife and children in the State in December, 2006. As a result, the hearing of the application of the mother and children resumed on the 16th December, 2009. The father’s application was also heard on that date and the hearing concluded on the 18th December, 2009 on which date the Court grant leave for the father to challenge the Minister’s decision to refuse him subsidiary protection. Mr. Karl Monahan B.L. appeared for the applicants and Mr. David Conlan Smyth B.L. for the respondents.
Background
4. There is a rather a complicated asylum history in this family’s case. In March, 2005 the mother arrived in Ireland with her three Nigerian-born children while she was eight months pregnant. She gave birth to Solomon (the fifth applicant) in Ireland in April, 2005. Each of her four children was included under her asylum application. The essence of her claim was that she and her husband had converted from Islam to Christianity and this led her husband to refuse the title of chief of his village. As a result he was beaten and the entire family was threatened. The mother fled Nigeria with her children and came to the State. She said that she was unaware of her husband’s whereabouts when she made her asylum claim.

5. The Refugee Applications Commissioner recommended that she and her children should not be declared refugees in June, 2005. A number of negative credibility findings were made in the s. 13 report including a finding under s. 13 (6) (a) of the Refugee Act 1996, i.e. that the mother showed either no basis or a minimal basis for the contention that she is a refugee. The applicants then proceeded with their paper-based appeal to the RAT which confirmed the recommendation of the Commissioner by decision dated the 10th May, 2006. Like the Commissioner, the Tribunal Member made a number of negative credibility findings.

6. On the 25th May, 2006, the Minister notified the applicants that he had decided not to grant them declarations of refugee status and was proposing to deport them. They were invited to apply for leave to remain in the State. On the 16th June, 2006 their nominated RLS Solicitor applied on their behalf for leave to remain, setting out the same facts that had grounded the unsuccessful asylum application. He also submitted that the family had made successful attempts to integrate into Irish society, that they lived peacefully in Mosney and that the mother is a dedicated student having completed several courses in Ireland and a University diploma in Nigeria. The children were pursuing education, were of excellent character (letters of reference were appended), the youngest child was born in Ireland, the mother is “a well-educated independent woman” and they would be an asset to Irish society. It was again stated that the mother was unaware of her husband’s whereabouts.

7. On the 13th July, 2006 the applicants’ file was examined by two officers of the Repatriation Unit pursuant to s. 3(6) of the Immigration Act 1999 and s. 5 of the Refugee Act 1996. The first officer found that repatriating the mother to Nigeria would not be contrary to s. 5 of the Refugee Act 1996 and that the humanitarian considerations on the file were not such that they ought not to be returned. Specific consideration was given to the situation of the child born in Ireland – it was found that he is not an Irish citizen and was entitled to Nigerian citizenship. It was noted that he does not have an automatic right to remain in the State and his mother is not eligible for inclusion in the IBC 05 Scheme. The officer stated that no issue arose under s. 4 of the Criminal Justice (UN Convention Against Torture) Act 2000 and she had also had regard to s. 3(1) of the European Convention on Human Rights Act 2003. A second officer confirmed the recommendation that the Minister should make deportation orders against the mother and children. Deportation orders were signed by the Minister on the 11th August, 2006 and notified to the applicants by letter dated 4th September, 2006. On the 8th September, 2006 Mr. Seán Mulvihill, Solicitor came on record for the mother and children and these proceedings issued on the 18th September, 2006. The absence of any revocation application by the mother despite the passage of time and the subsequent arrival of the husband in the State in December, 2006, was defended on the basis that this would necessarily admit of the validity of the deportation order.
I. The Issues in the Case
8. The challenge to the validity of the Minister’s decision to make deportation orders against the mother and children was grounded on the following errors asserted:

a. The Minister’s failure to consider the Article 8 rights of the mother and children;
b. His failure to consider the individual circumstances of the Nigerian-born children; and

c. His selective use of COI.

(a) Article 8
9. It was argued that in determining to make a deportation order, the Minister failed to give any consideration at all to the mother and children’s right to respect for their private and family life under Article 8 ECHR. In Kozhukarov v. The Minister for Justice, Equality and Law Reform [2005] IEHC 424 Clarke J. held
“It seems to me that there are strong grounds for arguing (more than sufficient to establish the threshold of substantial grounds required at this stage) that, in addition to the matters identified in Kouaype [v The Minister for Justice, Equality and Law Reform [2005] IEHC 380], it is also, in principal and provided that the appropriate facts can be established, open to a party to seek to challenge the making of a deportation order (or in an appropriate case a refusal to revoke a deportation order) where it can be shown that there are substantial grounds for arguing that the making of (or refusal to revoke) such an order would be in breach of any other legal obligation on the part of the Minister (that is to say an obligation other than those imposed by s. 5 of the 1996 Act or s. 3(6) of the 1999 Act.”
10. While the applicants accepted that it might have been open to the Minister to find that the deportation of the applicants would be justified and proportionate within the meaning of Article 8(2), they argued that the question of their Article 8 rights was simply never addressed. Regard to the applicants’ family and domestic circumstances as required by s. 3(6) of the Immigration Act 1999 is not sufficient for the consideration required under Article 8 of the ECHR.
(b) Position of the Children
11. It was argued that the Minister erred by ignoring the individual circumstances of the three Nigerian-born children. Information on each of the children’s individual circumstances had been furnished to the Minister in the application for leave to remain but the only child he had regard to was Solomon who is Irish-born but is not an Irish citizen. In that regard his only consideration was to state that he did not have an automatic entitlement to remain in the State and gave no other reason for deciding to deport Solomon and his mother and siblings.
(c) Selective Use of COI
12. The applicants argued that the Minister engaged in selective use of the U.K. Home Office COI report on Nigeria which he had sourced and relied upon in the consideration of whether to make deportation order against the mother and children. He extracted portions of that report which support the conclusion that refoulement would not be in issue and ignored those portions of the report that would contradict that conclusion.
II. The Respondents’ Submissions
13. Mr Conlan Smyth B.L., counsel for the respondent, submitted as a preliminary point that no revocation application has been made on behalf of the mother and children, even though in their leave to remain application the mother claimed she did now know of her husband’s whereabouts and the Minister considered the family rights of the mother and children on that basis. It was now known that the father arrived some months later but the Minister was never informed of that fact.
(a) Article 8
14. No mention was made of Article 8 of the ECHR in the applicants’ leave to remain application nor was it implicitly suggested that their removal to Nigeria would breach their right to respect for their private and family life. The applicants have failed to show that their representations were not considered by the Minister. The Minister considered the situation at that time, insofar as the information was furnished to him.

15. The European Court of Human Rights in Niemietz v. Germany (1993) 16 EHRR 97 held that a person’s private life equates to the work, social and educational ties formed since arriving in the State fifteen months earlier. The mother did not work in Ireland because she was not entitled to do so. It was difficult to see how her private life had been ignored by the Minister who had expressly considered the representations made as to the family’s social ties in Ireland when assessing the representations made to him under s. 3(6) (i) of the Immigration Act 1999.
(b) Position of the Children
16. The respondents submitted that the Minister referred expressly to the children by name and he noted their dates of birth and the location of their births. There can be no doubt that he was aware of the family circumstances of the applicants and that he gave express consideration of those circumstances insofar as they were known to him. While some time was spent in dealing with the position of the Irish born but non-citizen youngest child, there was no proof before the Court that an unfair emphasis was placed on the position of that child.
(c) Selective Use of COI
17. The respondents argued that this is not a case in which the Minister compared and contrasted COI. There was no conflicting COI before the Minister. He had regard to the COI before him, considered it and concluded that there was no evidence that the repatriation of the mother and children to Nigeria would contravene s. 5 of the Refugee Act 1996.
Decision
18. These being applications to which s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, the applicants must show substantial grounds for the contention that the Minister’s decision ought to be quashed. Each of the applicants’ grounds will be addressed in turn to determine if substantial grounds sufficient for leave to argue those grounds further have been identified.
(a) Article 8
19. The balancing of the competing interests of the family and the State under Article 8 must be conducted on the basis of facts. The applicants have not identified any facts which would indicate that the deportation would interfere with their right to respect for their private and family life. The family were in the State for approximately fifteen months when the leave to remain application was considered. Their entitlement to remain in the State pursuant to s. 9(2) of the Refugee Act 1996 expired when they were notified that the Minister had decided not to grant them refugee status. They had at that stage been in Ireland for little more that one year and their sole claim to be in the State arose from their asylum claim. As far as the Minister was aware, the applicants were here as a family and the father’s whereabouts were not known. There could be no question of any interference with the family’s Article 8 rights on the basis of those facts. If they are to be deported, the family (insofar as it was known to the Minister) will be deported together. No circumstances existed in this case which raise the sort of exceptional circumstances as identified in Kozhukarov. In that case, the family facing deportation had lost a baby who died at a very early age and was buried in Ireland. Clarke J. recognised that circumstances such as existed in that family’s case could give rise to a legitimate challenge to the deportation order pursuant to their Article 8 rights. There were no such exceptional circumstances in these applicants’ submissions or in their file. While the Minister has an obligation to have regard for the rights guaranteed by the European Convention on Human Rights in all his administrative and legislative actions, it is not the case that he must seek out hypothetical and unidentified breaches of those rights. As held by Cooke J. in Oladimeji (J.O.) (a minor) v. The Refugee Applications Commissioner & Another [2009] IEHC 478, the Court is “not required to suspend common sense when asked to review that process” and “ought not to permit formalistic arguments of technical illegality to distract it from the need to apply common sense so as to ensure that the process remains not only lawful but fair, flexible, and expeditious.” This ground is not made out.
(b) Position of the Children
20. Equally, the Court sees no merit in the applicants’ second ground. Certainly, the position of the Irish-born child, Solomon, was explored at length as it had been posited that he was “Irish born”, giving the impression that citizenship rights were being asserted on his behalf. Had he been a citizen from birth, no deportation order could have been made against him and this would have had an impact on the examination of his mother and siblings’ files. Solomon’s situation is, however, that he was not a citizen but that notwithstanding, the limitations which the Courts have recognised which attach to the family of citizen children were stated in full. It was necessary in the consideration of his status to clarify any lingering doubts as to the effect of the changes to Article 9 of the Constitution introduced by the 27th amendment which was approved by referendum in 2004 and under the Irish Naturalisation and Citizenship Act 2004, which came into operation on the 1st January, 2005. This short dissertation on the changes to the law which affected the status of the youngest child Solomon and his family did not in any way diminish the consideration given to the other children whose biographical details were noted as also the fact that they were attending school in the state for the previous fifteen months. No special personal or humanitarian considerations were brought to the Minister’s attention or contained in their files which would require further comment. The Minister is obliged to consider the family and domestic circumstances of proposed deportees only insofar as they are known to him and has no obligation to enter into correspondence to obtain further details of those circumstances. In the circumstances this ground fails.
(c) Selective Use of COI
21. This issue was very minimally addressed. No country of origin information at all was furnished to the Minister in support of the leave to remain application nor was it suggested that the family would face any danger were they to be deported to Nigeria. The Minister therefore conducted his own enquiries as to whether their return to Nigeria would, in his opinion, put them in danger of a threat to their life or freedom on account of their race, religion, nationality, membership of a particular social group or political opinion, such that the deportations would breach s. 5 of the Refugee Act 1996. Insofar as the Court could understand the applicants’ arguments it was asserted that the Minister was selective in his reliance of extracts from COI reports that he sourced but no information contrary to that which was relied upon was before the Minister or this Court. The criticism here was tenuous in the extreme and unstateable.
Conclusion
22. As indicated on the 18th December, 2009 the Court is satisfied that the applicants have not established substantial grounds for the contention that the Minister’s decision to deport the applicants. Leave is refused. The grounds argued in the case were of such a tenuous nature that the suspicion remains that the challenge was no more than the deployment of a delaying tactic to remain in the State. The Court cannot but be aware that it is now five years since the mother and children arrived and the youngest child was born and four years since the father joined the family in the State. The delay since the serving of the deportation orders is now more than three and a half years and the children are approaching critical stages in their education development with two of the older children scheduled to sit the Leaving Certificate examinations in the next two years. These are matters which were not before the Minister when he decided to make deportation orders against the applicants and they have therefore not been taken into account by this Court in coming to its decision in these proceedings.

Ugbo & Anor -v- MJELR & Ors

[2010] IEHC 80 (05 March 2010)

Judgment Title: Ugbo & Anor -v- MJELR & Ors

Neutral Citation: [2010] IEHC 80

High Court Record Number: 2009 1174 JR

Date of Delivery: 05/03/2010

Court: High Court

Composition of Court:

Judgment by: Hanna J.

Status of Judgment: Approved

 

Neutral Citation [2010] IEHC 80

THE HIGH COURT
JUDICIAL REVIEW

2009 1174 JR

 

BETWEEN

WILLIAMS UGBO AND ANN BUCKLEY
APPLICANTS
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

 

RESPONDENTS
AND
HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT OF MR JUSTICE HANNA, delivered on the 5th day of March, 2010
1. The first named applicant is a national of Nigeria. He applied unsuccessfully for asylum in September, 2008 and he had been notified that the Minister for Justice, Equality and Law Reform proposed to deport him when he married the second named applicant, who is a citizen of Ireland, in June, 2009. The applicants seek leave to apply for judicial review of the decision of the Minister, dated the 28th October, 2009, to make a deportation order against the first named applicant. In addition they seek liberty to amend their original statement of grounds dated the 12th November, 2009 so as to include grounds arising from Meadows v. The Minister for Justice, Equality and Law Reform & Others (Unreported, Supreme Court, 21st January, 2010).
Background
2. The papers relevant to the asylum application of the first named applicant are not exhibited in the proceedings but it appears that he claimed to have been assaulted in Nigeria in January, 2007 because he reported the vandalism of an oil-pipeline by his work friends to the police. He says he was in intensive care in a coma for eight months and after his release his attackers continued to threaten him and the police asked for money to protect him. He moved to another State where he lived for a few months until one of his attackers spotted him and told the local Muslim people that he was an informant to the police. Those people began to threaten him so he came to Ireland. The Refugee Applications Commissioner made a negative recommendation in his case which was affirmed on appeal. In 2008 the Minister informed him that he had decided not to grant a declaration of refugee status and proposed to deport him.

3. On the 30th March, 2009 the applicant applied for subsidiary protection and humanitarian leave to remain in the State. In support of the subsidiary protection application he briefly recounted the facts and circumstances which had grounded his asylum application. In a handwritten form appended to the application which appears to have been completed by the second named applicant on his behalf, it was submitted that he feared torture or inhuman and degrading treatment or punishment in Nigeria. The Minister was requested to consider two medical reports from Nigeria which were in the Minister’s possession.

4. In support of the parallel application for leave to remain the applicant notified the Minister that he was engaged to be married to the second named applicant who is a citizen of Ireland and an employee of the Revenue Commissioners. It was stated that he is prepared to work in any capacity if permitted and that he is of good conduct. It was submitted that he is keen to foster bonds with Ireland and Irish society and that the grant of leave to remain would not in any way affect the integrity of the asylum and immigration procedures of the State. Reference was made to Article 12 of the ICCPR on the right to health. In the handwritten form appended to the application it was submitted that the whereabouts of his son and daughter in Nigeria were not known to him, that he was never married in Nigeria, that he loved his fiancée and they wanted to make a life together and would be living together at her address after their marriage in June, 2009. It was noted that it was his intention to secure employment as soon as possible; he had been a car dealer in Nigeria and was willing to take up any job and did not want to be on social welfare. Appended was a handwritten letter by the second named applicant providing her PPS number and reiterating the information in relation to their relationship and proposed date of marriage.

5. In relation to refoulement it was submitted that to return the first named applicant to Nigeria would breach Article 3 of the European Convention on Human Rights (ECHR) and that “the Applicant’s basic human rights require safeguarding”. It was stated that the applicant was compelled to seek international protection as a last resort, that internal relocation was not available to him and that he could not seek police protection because they had already been ineffective in protecting him. It was submitted that:-

“[T]here is Country of Origin information available concerning the situation in relation to obtaining state protection in Nigeria and when considered with the applicant’s personal circumstances outlined above internal relocation was not an option to him.”
6. No country of origin information (COI) appears to have been furnished in support of the application, however. It was submitted that he had a legitimate fear of being persecuted or suffering serious harm and could not reasonably have been expected to move or stay in another part of Nigeria. The applicant’s solicitors stated that the Michigan principles were instructive but they did not make any more detailed submission in that regard. Finally it was submitted that if returned to Nigeria his life would be seriously in danger and he would be killed though it was not suggested by whom, for what reason or in what location.
7. The applicants married in Galway in June, 2009 and in July, 2009 their solicitors forwarded a copy of their marriage certificate and a copy of the passport of the second named applicant to the Minister. It was noted that the applicants were residing together at an address in Dublin. It appears the certificate was not received by the Minister or was not on the first named applicant’s file when it was examined in November, 2009 but the Court is satisfied that nothing turns on this because when the file was examined the examining officer assumed that the marriage had taken place.
The Impugned Decision
8. By letter dated the 3rd November, 2009 the Minister informed the first named applicant that a deportation order had been made against him, stating:-

“In reaching this decision the Minister has satisfied himself that the provisions of section 5 (prohibition of refoulement) of the Refugee Act, 1996 (as amended) are compiled with in your case. The reasons for the Minister’s decision are that you are a person whose application for a declaration as a refugee has been refused. Having had regard to the factors set out in section 3(6) of the Immigration Act, 1999 (as amended), including the representations received on your behalf, the Minister is satisfied that the interest of the public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State.”
9. It is common case that this is the same standard letter that was sent to the applicant in the Meadows case.
10. Appended to the letter was the memorandum of examination of his file by an officer of the Repatriation Unit dated the 7th October, 2009. Consideration was first given to s. 3 of the Immigration Act 1999. It was noted that he was born in 1969 and had been in Ireland for approximately one year, that he last saw his children, born in 1994 and 1998 respectively, in Nigeria and that he had notified the Minister of his intention to marry an Irish national although no further details of the marriage had been forwarded to the Minister’s department. It was noted that his connection with the State lies in his asylum application and that he had attended primary and secondary school in Nigeria and worked there as a clothes trader, in the fish business and as a car salesman. It was noted that his prospects of obtaining employment would be poor in the current economic climate and that he had not come to the attention of the Gardaí since coming to Ireland though his previous character and conduct before entering the State could not be verified. In relation to the humanitarian considerations on file it was noted that he submits that he suffered a head injury as a result of an assault in Nigeria and had notified his intention to marry an Irish national but the conclusion was reached that there was nothing in the humanitarian considerations on file to suggest that he should not be returned to Nigeria. The representations made on his behalf were summarised. It was noted that it is in the interest of the common good to uphold the asylum and immigration procedures of the State and that considerations of national security and public policy do not have a bearing on the case.

11. Consideration was next given to s. 5 of the Refugee Act 1996, i.e. the prohibition of refoulement. The account given by the applicant during his asylum application was summarised and extracts from a U.K. Home Office report on Nigeria (June, 2009) were reproduced in relation to geography; the Nigerian Constitution; security forces and police; avenues of complaint; human rights institutions, organisations and activists; corruption and government efforts to tackle same; medical issues; freedom of movement; exit-entry procedures; treatment of failed asylum seekers; citizenship and nationality. Having reproduced those extracts the officer concluded that “Having considered the facts of this case, I am of the opinion that repatriating [the first named applicant] to Nigeria is not contrary to Section 5 of the Refugee Act 1996, as amended, in this instance.”

12. Consideration was next given to Article 3 of the ECHR in the light of his complaint that he suffered a broken skull. By reference to the same COI report it was concluded that any appropriate medical treatment that he might require was available to him in Nigeria and that there were no exceptional circumstances such that there was a sufficiently real risk that deporting him to Nigeria would be in breach of Article 3. The applicants do not seek to challenge the legality of that conclusion.

13. Consideration was then given to Article 8 of the ECHR. It was accepted that the deportation of the first named applicant would interfere with his right to respect for private life but that to deport him would not have consequences of such gravity as to engage rights under Article 8(1). It was also accepted that in the light of his assumed marriage to an Irish citizen, the deportation would interfere with the right to respect for their family life but it was submitted that the interference would:-

(1) Be in accordance with law (i.e. s. 3 of the Immigration Act 1999);
(2) Pursue a pressing need and legitimate aim (i.e. to maintain control of national borders and operate a regulated system for the control, processing and monitoring of foreign nationals in the State); and

(3) Be necessary in a democratic society, in pursuit of a pressing social need and proportionate to the legitimate aim being pursued within the meaning of Article 8(2).

14. Reference was made to the decision of the European Court of Human Rights in Abdulaziz & Ors v. The United Kingdom [1985] 7 EHRR 471 where it was held that there is no general obligation on a State to respect the choice by a married couple of the country of matrimonial residence; that States enjoy a wide margin of appreciation in this area; that it is relevant whether there are any special reasons why the couple should not be expected to reside in the country to which the spouse is being deported; and that it is relevant whether they were aware, when they married, of the problems of entry and limited leave available. Reference was also made to similar principles set out in R (Mahmood) v. The Secretary of State for the Home Department [2001] 1 WLR 840. It was noted that the first named applicant knew of his precarious immigration position in Ireland when he entered into his relationship with the second named applicant who now had a choice of whether to remain in Ireland or travel to Nigeria with her husband. It was stated that the fact that her husband is a national of Nigeria who lived there until his arrival in Ireland would ease the transition for her of travelling to reside in Nigeria. It was concluded therefore that the proposed deportation would not breach Article 8.
The Issues in the Case
15. The applicants seek leave to challenge the Minister’s decision to make a deportation order on two key issues being that (1) he failed to have regard to the rights of the applicants and, in particular, the second named applicant under Article 41 of the Constitution; and (2) he failed to provide any reason or rationale for his conclusion that the provisions of s. 5 of the Refugee Act 1996 were complied with.

16. The Court has carefully considered the contents of the original statement of grounds dated the 12th November, 2009 and is satisfied that although Article 41 of the Constitution was not specifically pleaded, clear and repeated reference was made to the consideration given to the constitutional rights of the applicants as a married couple and, in particular, the constitutional rights of the second named applicant as an Irish citizen. The Court is therefore satisfied that no extension of time is required in order for the applicants to seek leave on the first issue relating to Article 41 and the arguments advanced on that subject will be assessed in due course.

17. Careful examination of the original statement of grounds reveals no mention, explicit or implicit, of the prohibition of refoulement, s. 5 of the Refugee Act 1996 or the absence of reasons for concluding that the repatriation of the applicant would not breach s. 5. Neither was any emphasis placed on those issues in the grounding affidavit. The Court is satisfied that in seeking to amend their statement of grounds to include these issues, the applicants are seeking to add new grounds of relief which amount to a new cause of action. The grounds set out at 5.1 (f), 5.2 and 5.8 of the amended statement of grounds are not merely a recasting or a more acute restatement of the original grounds; they advance an entirely new and additional case which was not flagged in November, 2009.

18. In the circumstances and applying the principles set down in Muresan v. The Minister for Justice, Equality and Law Reform [2004] 2 I.L.R.M. 364, an extension of the 14 day time-limit allowed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000 is required and the applicants are required to show good and sufficient reason for the extension. It is well established that a number of factors are relevant to the consideration of an application for an extension of time including the length of the time limit; the length of the delay; the legislative policy evidenced by the statute setting out the time limit, third party rights; the personal circumstances of the applicants; the blameworthiness of the applicants and their lawyers and the prima facie strength of the applicants’ case. In F.A. (Azubugu) v. The Refugee Appeals Tribunal [2007] IEHC 290 Peart J. held that “each case will have to be considered on its own facts and circumstances. The Court must engage upon a balancing exercise in which a number of factors are weighed in the balance so that a just decision can be arrived at.”

19. The length of time allowed by s. 5 of the Act of 2000 to initiate proceedings in cases such as the present is 14 days. In order to amend their statement of grounds in the manner required, the applicants require a 10 week extension of time. The Court notes that the delay in pleading or seeking to plead the new grounds in relation to refoulement ran to more than five times the length of time allowed to the applicants under the statute. Thus it is clear that the delay was substantial in the light of the short time frame envisaged by the Oireachtas. This is a significant consideration bearing in mind that the legislative policy underpinning s. 5 of the Act of 2000 was described by Peart J. in Azubugu as:-

“an intention on the part of the Oireachtas that applicants must act with great dispatch when considering whether or not to challenge a decision by way of judicial review, this being part of the legitimate objective for a democratic state to effectively control and regulate entry to the State by nationals of other countries.” (emphasis added)
20. The Court notes that the applicants were legally represented by the same solicitors and junior counsel at all relevant times. In their original statement of grounds they pleaded grounds of relief focussed almost exclusively on the family rights of the applicants under the Constitution and the ECHR. It appears that a decision was taken not to challenge the conclusions reached in relation to refoulement. The Court is satisfied that the proposed grounds in relation to refoulement could, with reasonable diligence, have been pleaded in the original statement of grounds. The affidavit of the applicants’ solicitor suggests that the proposed amendment is designed to shorten and compress the grounds to focus the case and to save in time and costs. This goes no distance towards explaining the omission to plead grounds in relation to refoulement in November, 2009. The only explanation tentatively advanced on behalf of the applicants at the hearing was that the situation changed after the delivery of the Supreme Court’s judgment in Meadows on the 21st January, 2010. The Court is not satisfied that this is a sufficient explanation for such a substantial period of delay. The obligation to give reasons or a rationale for a decision and to consider s. 5 of the Refugee Act 1996 has long been recognised by the judicial review courts and the sufficiency of the reasons given for a finding that refoulement is not in issue and / or the sufficiency of the consideration give to refoulement was frequently pleaded in asylum cases before the delivery of Meadows. The applicants’ solicitors and junior counsel, and indeed their senior counsel who came into the case at a late stage, are experienced in asylum and immigration law. In the circumstances the Court would describe the motion to amend as an opportunistic application which, in the view of this Court, ought not to be granted in the absence of very compelling reasons which do not appear to be present in this case. There is no evidence at all that the applicants formed the intention to challenge the conclusions on refoulement within the 14-day period nor is there any averment to that effect on affidavit.
21. Third party rights are of no relevance in this case nor does the Court see any significance in discussing the blameworthiness of the applicants and their lawyers. The applicants have not brought any other particular personal or circumstances to the attention of the Court and there are none therefore to be considered in the context of the extension of time. The final consideration of relevance therefore is the prima facie strength of the applicants’ case. This is, as was noted by Peart J. in Azubugu, just one of the factors to be considered. The applicants’ case is that the Minister’s decision in this case (i.e. the letter dated the 3rd November, 2009) was in standard form and in precisely the same terms as the decision in the Meadows case and that, as in Meadows, no reasons for the decision that the provisions of s. 5 of the Refugee Act 1996 were fulfilled are apparent from the decision or the memo containing the examination of the first named applicant’s file. It was argued that because leave was granted on the absence of reasons for the findings on refoulement in Meadows, substantial grounds also exist on that ground in this case.

22. The Court does not accept that this is necessarily the case. The judgments of the majority of the Supreme Court made it clear that the Minister’s obligation to specifically address and form an opinion on the question of refoulement arises only where there is a “claim or factual material” put forward to suggest that a deportation order “would expose the deportee to any of the risks referred to in s. 5”. Murray C.J. was clear that if no such claim or factual material is put forward, the Minister’s decision with regard to s. 5 considerations is “a mere formality and the rationale of the decision will be self evident”. It was on that ground that Murray C.J. distinguished Meadows from Baby O v. Minister for Justice Equality and Law Reform [2002] 2 IR 169 where Keane C.J. held that fair procedures did not require the Minister to give reasons for holding that s. 5 had been satisfied. Murray C.J. noted that in Baby O it did not appear that the applicant had relied at the leave to remain stage on any material that is “expressly” and “specifically relevant to refoulement, as distinct from humanitarian grounds”. Murray C.J. was satisfied that “If there was no such material then the Minister’s decision on s. 5 would have been one of form only and not required any rationale.” He stated that the Baby O decision does not mean that the Minister is not obligated to ensure that his decision is in terms which would enable its rationale to be discerned expressly or by inference “in a case where an applicant has relied in his or her submissions on material expressly relevant to the prohibition on refoulement”.

23. In the view of this Court, the submissions made on behalf of the applicant in this case in relation to refoulement were more akin to the submissions made in Baby O than the submissions made in Meadows. A careful reading of the decisions of the High Court and the Supreme Court in Meadows reveals that there were several atypical features not least that the applicant was an unaccompanied minor who was initially dealt with under the Hope Hanlon procedures. According to Gilligan J. in the High Court her solicitors made “very extensive” submissions to the Minister on the risk of female genital mutilation in Nigeria, an eventuality which would undoubtedly violate s. 5 of the Refugee Act 1996. Particularly atypical was their request that the Minister give the applicant the opportunity of adducing expert evidence on the relevant cultural and social context including relevant gender and child issues as they pertain in Nigeria and as they would affect the applicant. Of further note is that the Minister did not respond to that application other than by notifying her of his decision to deport.

24. The submissions made in this case in relation to refoulement were of an entirely different nature. In no circumstances could those submissions, synopsised at paragraph 5 above, be described as “extensive”. On the contrary, the Court would categorise those refoulement submissions in this case as being perfunctory, with attention being focussed instead on the humanitarian issues arising from the applicants’ proposed marriage. No submissions were made as to why, when the applicant’s asylum application had failed, his repatriation to Nigeria would violate s. 5 of the Refugee Act 1996. The facts grounding his asylum application were synopsised briefly with no expansion or comment. No reference was made to his failed asylum application. No documentation was submitted other than the letters relating to his proposed marriage and the two medical reports which had previously been considered by the asylum authorities. No country of origin information was appended on the situation prevailing in the applicant’s home area and no biographical details in relation to his life in Nigeria were particularised. The persons he claimed to fear, their current whereabouts and activities since 2008 or the outcome of the police investigation into the vandalism of the pipeline were not referred to nor was it explained what or who he would fear apart from being killed.

25. In the circumstances the Court is satisfied on a preliminary consideration that this case is distinguishable from Meadows by reason of the absence of any real attempt to make out or substantiate a claim that the repatriation of the first named applicant would expose him to any of the risks referred to in s. 5. In the circumstances the Court is satisfied that, following the principles established in Meadows and Baby O, the Minister’s obligation to consider s. 5 in this case was little more than a formality and the reasons for the conclusion that s. 5 was fulfilled are self-evident on the face of the decision when read together with the examination of file.

26. Having carefully weighed all the factors, the Court can see no justification for extending the time to allow the applicants amend their statement of grounds so as to include new grounds of relief which were in no way signposted or encompassed in the original statement of grounds. The application for liberty to amend is refused. The remaining issue is whether leave ought to be granted on the Article 41 arguments which the Court is satisfied were implicit in the original statement of grounds.
Failure to refer to Article 41
27. The applicants contend that decision to make a deportation order ought to be quashed by reason of the Minister’s failure to make any reference to their rights under Article 41 of the Constitution and in particular Article 41.3.1° which provides that “The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”

28. The Court has the deepest sympathy for the difficult position in which this couple finds themselves but must not lose sight of the fact that the essential role of the Court is to assess the legality of the impugned decision and ascertain whether or not substantial grounds are advanced in this respect. The nature of the Minister’s obligations in this regard has been extensively considered and the law is clear from the decisions of Ryan J. in Fitzpatrick (F.P.) v. The Minister for Justice, Equality and Law Reform [2005] IEHC 9, Dunne J. in Sanni (B.I.S.) v. The Minister for Justice, Equality and Law Reform [2007] IEHC 398 (referring to Pok Sun Shum v. Minister for Justice [1986] I.R.L.M. 593), Birmingham J. in G.O. (Olaitan) v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, 19th June, 2008) and the Supreme Court (Fennelly J.) in T.C. v. The Minister for Justice, Equality and Law Reform [2005] 4 IR 109. These decisions clarify that the Minister is under no obligation to expressly refer to Article 41 of the Constitution. It is perfectly clear from his decision that he was aware of the family and domestic circumstances of the applicants. It may be true, as was the case in Pok Sun Shum, that he did not take down the Constitution and consider the constitutional provisions relating to the family before reaching a decision or making a recommendation but, as Costello J. held in Pok Sun Shum, the Court does not think that that vitiates the decision that was reached. The Minister was clearly aware of the marital status of the applicants. He noted that they had arranged to marry in June, 2009 and that they intended to live together after the marriage and he proceeded on the assumption that the marriage had taken place. He noted that the first named applicant’s solicitors submitted that he had formed close bonds with the Irish State during his year here. Extensive consideration was given to the couple’s right to respect for their family life under Article 8 of the ECHR and it was found that, although the deportation would interfere with their family life, the interference would not breach Article 8. It was noted that the wife was faced with the decision as to whether to remain in Ireland or move to Nigeria, a transition which it was felt would be eased by the fact that her husband is Nigerian and lived there until 2008.

29. In the circumstances and in the light of the extensive caselaw on this issue, it is untenable to suggest that the applicants’ marriage and the impact that the proposed deportation would have upon them was not at the forefront of the Minister’s mind when he was making this decision. As was the case in Fitzpatrick, it seems to this Court that the marriage was highlighted in such a way as to make it quite unnecessary for there to be a specific recitation of the fact that the Minister considered the impact of the deportation on the constitutional rights of the second named applicant. Moreover the Court notes that no representations were made to the Minister at the leave to remain stage in relation to the constitutional rights of the couple. The applicants have not established substantial grounds on this issue.

30. As a subsidiary argument it was contended that the Minister erred in his assessment of the applicants’ rights under Article 8 of the ECHR because he operated under an unfounded assumption that the family could move to Nigeria. Submissions were made at the hearing as to why it would be unreasonable to expect the second named applicant to move to Nigeria, based on her affidavit grounding these proceedings. The Court regrets that it cannot find merit in this argument, as the difficulties that might be faced by the second named applicant in Nigeria were not a matter that was before the Minister when he was considering whether or not to deport her husband. The only information in relation to the wife’s circumstances that he had before him was her name; her statement that she loved the applicant and was engaged to be married to him and wished for him to remain in Ireland; the fact that she worked for the Revenue Commissioners for an unspecified length of time and in an unspecified capacity, earning an unspecified amount of money; her PPS number and her address. It is not clear whether the copy of her passport and therefore her date of birth and age were before the Minister but nothing much turns on that as it was not accompanied by any submissions as to why she should not be expected to join her husband in Nigeria if he was deported. No information was furnished about her family in Ireland, her religion, whether or not she has children, what foreign languages she speaks if any, her financial or other obligations in Ireland, her education and employment prospects, her knowledge of Nigerian culture and traditions, her health, her ability to travel or her relationship with her Nigerian in-laws, if any. The Minister is obliged under s. 3(6) of the Immigration Act 1999 to consider the family and domestic circumstances of a proposed deportee and the humanitarian considerations on the file only insofar as they are known to him. He gave the applicants ample opportunity to make representations to him and he considered the representations that they made without exception. He was under no obligation to enter into correspondence with them to ascertain whether or not the second named applicant would experience any difficulties in moving to Nigeria with her new husband.

31. In the light of the foregoing the Court is satisfied that the applicants have not established substantial grounds and leave is therefore refused.
Postscript
32. The Court notes that there is material in the affidavit of the second named applicant which was not before the Minister when he was considering whether or not to deport the first named applicant. This material includes her averments in relation to (i) the hardship that the deportation would create for her family; (ii) the amount of money that she earns; (iii) the length of her service with the Revenue Commissioners; (iv) her ability to support her husband if he was permitted to remain in the State; (v) her unwillingness or fear to travel to or reside in Nigeria if her husband is returned there and her fear that she would not gain employment there or might be kidnapped simply because she is foreign or that she would be subjected to discriminatory laws and practices in Nigeria relating to females; (vi) the fact that her parents and nine siblings live in Ireland and she is close to them and it would be devastating to her and them if she was required to leave the State and reside elsewhere; (vii) her desire not to be separated from her close friends in Ireland; (viii) the possibility of moving to another EU Member State with her husband where she would seek work in order to secure an entitlement for them to reside there.

33. These are not matters that the Court could take into account in assessing the legality of the Minister’s decision to deport because they were not before him but they may be matters which could for the basis for an application for revocation of the extant deportation order pursuant to s. 3(11) of the Immigration Act 1999. Such an application could be made even if effect is given to the deportation order in the interim and revocation would allow for the first named applicant to seek entry to the State by way of a visa. The Court in no way wishes to prejudge how such an application should be determined but there can be no doubt that the applicants’ case under Article 8 of the ECHR would have been somewhat stronger if more detailed information had been put before the Minister in relation to the obstacles that the second named applicant would face in Nigeria.

K.R.A. and B.M.A (A Minor) -v- The Minister for Justice and Equality

[2017] IECA 284 (27 October 2017)

Judgment
Title:
K.R.A. and B.M.A (A Minor) -v- The Minister for Justice and Equality
Neutral Citation:
[2017] IECA 284
Court of Appeal Record Number:
2016 377
High Court Record Number:
2015 299 JR
Date of Delivery:
27/10/2017
Court:
Court of Appeal
Composition of Court:
Ryan P., Irvine J., Hedigan J.
Judgment by:
Ryan P.
Status:
Approved
Result:
Appeal dismissed
Judgments by
Link to Judgment
Concurring
Ryan P.
Link
Irvine J., Hedigan J.
Irvine J.
Link
Ryan P., Hedigan J.

COURT OF APPEAL

Neutral Citation Number: [2017] IECA 284
[2016 No. 377]

The President
Irvine J.
Hedigan J.
BETWEEN

KRA AND BMA (A MINOR)
APPELLANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of the President delivered on 27th October 2017
Introduction
1. Ms. KRA, the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came alone to Ireland while pregnant and sought asylum on 10th March of the same year. Her baby, the second named applicant, BMA, was born four days later on 14th March 2008. The asylum application was rejected and in March 2009, Ms. KRA was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection, but on 9th November 2009, that also was rejected. On 18th November 2009, the Minister made deportation orders in respect of both applicants and Ms. KRA was required to present herself to the Garda National Immigration Bureau on 8th December 2009. She did not do so, but instead went into hiding from the authorities and remained underground for almost five years. Ultimately, she went to solicitors and through them, on 23rd October 2014, she made an application for revocation of the deportation orders pursuant to s. 3 (11) of the Immigration Act 1999. That gave rise to an arrest and an application to the High Court under Article 40 with which we are not concerned. On 18th May 2015, the Minister refused to revoke the deportation order. On 3rd June 2015, the High Court (Faherty J.) granted leave to the applicants to bring these judicial review proceedings in respect of the refusal.

2. Another relevant part of the chronology is that Article 42A of the Constitution came into force on 28th April, 2015, in the period between the application for revocation under s. 3(11) and the Minister’s decision. This appeal is primarily concerned with s. 1 of Article 42A which is as follows:

“The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
3. The matter was heard by Humphreys J. who delivered judgment on 12th May 2016, in which he rejected the various grounds challenging the Minister’s refusal. In another judgment in November 2016, the same judge granted a certificate permitting the disappointed applicants to appeal to this Court against the judgment previously given and the order perfected in June 2016. Two further judgments followed dealing with costs and a request by the Minister for leave. We are concerned in this case with the judgment of 12th May 2016, and the orders made in consequence. The appellants’ leave to appeal was granted on two grounds, but they added another two grounds in the notice of appeal, submissions and argument and it is accepted that grounds may be added when leave has been given.
4. A question that arose in the High Court and which was debated on the appeal is whether the decision of the Minister to refuse a revocation application under s. 3(11) required leave of the High Court before judicial review could be sought. Humphreys J. held that the restrictive statutory regime under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended in 2014 did indeed apply to such decisions, but the matter was not entirely clear. Although this appellant maintained her contention that the Minister’s refusal could be appealed without leave, in light of the judgment of the High Court, she applied for leave to appeal and the judge granted it. In the circumstances, the mother has had a full hearing in the High Court pursuant to the leave that she obtained to bring judicial review proceedings. She obtained sanction from the court to bring her appeal to this Court so that from her perspective there is nothing to be gained or lost in the discussion about entitlement to appeal from a Ministerial refusal to revoke a deportation order. The question, nevertheless, has obvious importance for other cases and I propose to consider the matter, but this judgment should be read subject to a reservation arising from the relatively academic nature of the argument on the point.

5. Another issue that is important from the Minister’s position, but is not central or even relevant to the appellant’s case is the approach of this Court to the granting of an injunction restraining the deportation of a person or persons in the circumstances of the mother and her daughter in this appeal. In the final episode of the tetralogy of litigation that came before Humphreys J, he considered whether he should enjoin deportation pending the determination of the appeal from his judgment. Having heard the matter debated, the judge refused an injunction and the matter in due course came to this Court.

6. This Court dealt with the appeal as a matter of urgency and decided on the basis of a pragmatic response to the situation to grant an injunction until the appeal was determined. Thus, the question of an injunction is a live issue for the Minister, but in fact it is of little more than academic interest for the appellants. In the circumstances, the court made it clear that nothing was to be taken from the decision in the instant case to enjoin deportation pro tem and to leave further consideration of the matter over until judgment.

7. Irvine J addresses the injunction issue in her judgment with which I agree and have nothing to add.
The High Court
8. The essential case made on behalf of KRA and BMA was, first, that Article 42A.1 conferred on BMA constitutional rights, inter alia, to education which fell to be put into the balance against the interests of the State. Her right to free primary education was a natural and imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate interests of the State. Secondly, the decision under challenge required a separate consideration of the individual position of the second appellant in circumstances where she was born in the State, was attending primary education, had never resided in the country to which she was to be deported and there was evidence that her education would be impaired if she were deported. Thirdly, the conclusion by the Minister that there was a functioning education system in Nigeria was irrational.

9. The appellants submitted on the procedural question of interpretation or construction of the statutory provision that s. 5(1)(m) of the Act of 2000 does not apply to a refusal to revoke a Deportation Order and therefore that leave of the High Court is not required.

10. The judgment of the High Court was delivered by Humphreys J. on 12th May 2016, and the order was perfected on 29th June 2016, bearing Record Number [2016] IEHC 289. Humphreys J. held that the refusal to revoke the deportation order was not invalidated by a failure to consider properly the child’s constitutional right to free primary education pursuant to Article 42A. The right existed independent of that Article which imposed no new obligations on the Minister in respect of immigration control and which made no significant difference to issues of deportation. The obligation to protect the natural and imprescriptible rights of all children applies to immigration decisions. The right to education is one of such rights to be enjoyed by citizens and non-citizens alike. However, entitlement to an education does not create an entitlement to remain in the State if a person is here unlawfully. Nor does the fact that the destination country has an inferior education system prevent deportation. There was no logical reason why the second applicant’s case had to be given separate consideration.

11. The court found that s. 3(11) did not give an applicant the right to reopen the whole deportation process afresh so that the whole case had to be reconsidered. This applied particularly with regard to the claims to education because that case was available to the applicants when they responded to the Minister’s notification of intention to make a deportation order pursuant to section 3. The provision for application to the Minister for revocation gave a person whose deportation had been ordered an opportunity to present to the Minister facts, circumstances and reasons why the order should not now be implemented. The judge said that there was “a limitation on the use of s. 3 (11) in that it is confined to new circumstances, albeit that this test can be read broadly to include new legal circumstances”. Otherwise, all deportation orders would be “up for permanent renegotiation” and the time limits would be inoperative.

12. The court held that the appellants were not entitled to litigate an issue, namely, the right to primary education, which they could have raised at the deportation order stage. A comparison of the adequacy of Irish and Nigerian education systems was available to the appellants in 2009. The fact that the second appellant would commence education was foreseeable and could have been litigated then. This was not a new point and in the absence of any significant difference in the legal position of the second appellant as result of the enactment of Article 42A there was nothing new in the claim that deportation would interfere with her education.

13. The court also rejected the claim based on irrationality.

14. At para. 90 of his judgment, the trial judge provided a helpful summary of the principles which he had identified and applied in refusing the application for judicial review of the Minister’s decision. We are not concerned with the first point dealing with a pleading issue that arose in the trial:

“(ii) Section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies to a decision refusing to revoke a deportation order under s. 3(11) of the Immigration Act 1999;
(iii) an applicant is not entitled to relief by way of judicial review challenging a decision refusing to revoke a deportation order on a ground which could have been available to him or her at the time the original order was made, in the absence of a change of circumstances or of refoulement arising;

(iv) the right to education including to free primary education is a natural and imprescriptible right of the child to be enjoyed without discrimination on grounds such as nationality, legal status or marital status of parents by any child within the jurisdiction;

(v) such a right only applies while the child is present in the State and does not confer any right not to be removed, even to a country with an inferior social or educational system;

(vi) the right of a non-national child to be or remain in the State is not a natural and imprescriptible right and therefore does not fall within the scope of Article 42A.1;

(vii) insofar as it relates to social or educational rights (leaving aside family rights), Article 42A does not represent an obstacle to deportation of a child and does not require express consideration by the Minister for Justice and Equality, and insofar as it suggests otherwise, or implies a position which amounts to requiring more detailed consideration of the deportation of a child on such grounds, the C.O.O. decision is in my view incorrect;

(viii) it is rationally open to the Minister to conclude that Nigeria has a functioning educational system;

(ix) there is no obligation on the Minister to consider the deportation of a child (or revocation of a deportation order) separately from that of a parent: the C.O.O. decision in this regard is in my view incorrect.”

The Appeal
15. The notice of appeal lists the following grounds:
“(i) The Learned Trial judge erred in concluding that Section 5 (1) (m) of the 2000 Act applies to a refusal to revoke a Deportation Order.
(i) The Learned Trial Judge erred in refusing to follow the Judgment of Eagar J in C.O.O. v The Minister for Justice [2015] IEHC 139.

(ii) The Learned Trial Judge erred in concluding that Article 42A.1 of the Constitution did not make any, or any significant, difference to the entitlement of the State to deport children who are unlawfully present in the State.

(iii) The finding of the respondent that there was a ‘functioning’ education system in Nigeria was irrational having regard to the material before her and/or the provisions of Articles 42 and/or 42A of the Constitution.”

The Issues and Arguments
Appellants’ Submissions
16. The appellants contended that the High Court should have held that a child’s right to free primary education was a natural and imprescriptible right under this Article which could not be defeated otherwise than by a careful balancing against the legitimate interests of the State. Sivsivadze v. The Minister for Justice [2015] 2 ILRM 73 is authority that the courts have an obligation under Article 42A.1 to consider the rights of children in the immigration context. In Dos Santos v. The Minister for Justice [2015] IECA 210, this Court held that while non-citizen children did not have a constitutional right to reside in the State, they were entitled to other rights including those relating to fair procedures. The terms “natural and imprescriptible” and “all children” make clear the non-discriminatory character of Article 42A.1. Legal status does not exclude non-citizen children from fundamental human rights in the Constitution.

17. The question then becomes whether these natural and imprescriptible rights include that of primary education. In Re Article 26 and the Adoption (No.2) Bill [1989] IR 656, the Supreme Court emphasised that the predecessor provision in Article 42.5 sought to protect all of the personal rights of the child. Similarly, in JG & Ors v. Judge Staunton & Ors [2013] IR 390, Hogan J. noted that violations of the personhood of a child, as understood through the lens of Article 40.3.2 of the Constitution, would amount to a breach of their Article 42.5 rights.

18. The right to primary education is included in the personal rights of the child protected by Article 42A.1. This view, which does not distinguish between citizen and non-citizen, is in line with the Article 28.1 of the UN Convention on the Rights of the Child which dictates that States shall, inter alia, “[m]ake primary education compulsory and available free to all”. The right to primary education is also expressed in near identical terms in Article 13 of the International Covenant on Economic, Social and Cultural Rights.

19. The appellant contends that the true interpretation of Article 42A.1 requires the Minister to consider the individual position of BMA in immigration determinations so as to protect and vindicate the natural rights of the child. In C.O.O v. The Minister for Justice [2015] IEHC 139, Eager J. highlighted that s. 3(6) of the Immigration Act 1999 required the individual consideration of circumstances of an individual person in determining a deportation order. This was held to include non-citizen children. Eager J. also made obiter remarks surrounding the pending referendum that would ultimately see the insertion of Article 42A into the Constitution. It was noted that if passed, the Minister would have to give greater consideration to the welfare of the child in making deportation determinations.

20. It is accepted that BMA does not have as extensive a list of constitutional rights as that of a citizen child, but the methodology for assessing whether they are upheld is the same. Oguekwe v. Minister for Justice [2008] 3 IR 795 held that the Minister is required to “expressly” consider her rights in making a determination such as this. It is the duty of the Respondent to assess and have regard to the “potential interference with rights of the appellant”, in this case that of primary education. It is submitted that the Minister must take a number of factors into consideration including:

(i) The individual needs of the child in question;
(ii) the duration of that child’s engagement in the State’s education system;

(iii) the educational opportunities available to child in their position in their country of origin and

(iv) the rights of the State in matters of national security, public policy, and the integrity of its immigration system.

21. The Minister’s duty is essentially one of upholding the principles of fairness and justice in a manner that is reasonable and proportionate to the circumstances. The appellants cite Meadows v. The Minister for Justice [2010] 2 IR 701.
22. Deportation of BMA to Nigeria would deprive her of a primary education. The trial judge held that this right was vindicated by providing education during BMA’s time in the State. It is submitted that this limited reading of the right to primary education neglects to appreciate the significance of the term: imprescriptible, as a hallmark of its importance to society as recognised by Hogan J. in Staunton. The Minister should have had regard to the fact that BMA had been attending primary school since September 2012, and according to her school Principal had integrated well, making a number of friends in the process. Additionally, the educational opportunities available in Nigeria would be significantly less than those she was currently availing of. Moreover, BMA, while not a citizen, had been born in the State and had never lived in Nigeria or any other country. The deportation order itself was based on her being a “dependent child”. Where no reference or consideration was given to BMA’s natural and imprescriptible rights, the Appellant submits that the Minister failed to fulfil her constitutional obligations.
Respondent’s Submissions
23. Article 42A.1 merely affirms the State’s accepted obligation to protect the natural and imprescriptible rights of all children, but only insofar as practicable. It is accepted that, as per Walsh J. in Nicolau v. An Bord Uchtala [1964] IR 567, the natural rights of the child include a right to “religious and moral, intellectual, physical and social education”. However, the appellants have not shown that free primary education is a natural and imprescriptible right as the cited provision found in the UN Convention on the Rights of the Child is one to be aspired to.

24. In the alternative, the respondent notes that the right to free primary education is not an absolute one and can be weighed against the State’s right to control immigration. Moreover, the right to primary education point was never raised in their representations to the Minister in support of their request to have the deportation order revoked. However, the Minister had notice that BMA was attending primary school by virtue of information provided to her during this process. In Fitzpatrick v. Minister for Justice [2005] IEHC 9, Ryan J. (as he then was) held that a specific consideration and the weight given to it need not be highlighted in the reasoning for a deportation order.

25. It is sufficient for the respondent to say that due consideration was given to the impact that removing BMA from the State would have on her education and was entitled to conclude that the balance lay with asserting the State’s entitlement to control immigration. This case can be distinguished from Oguekwe as that case concerned the deportation of a non-national parent of a citizen child and the rights which accrued were fundamentally different as a result.

26. The respondent argued that the right to free primary education did not preclude the deportation of a non-national child availing herself of such education. The Minister was not required to determine whether such a right was outweighed by the interest of the State. Without prejudice to the general traverse of this ground, the Minister submitted:

(iv) The request for revocation did not specifically assert a breach of constitutional rights, but rather alleged a reduction in educational opportunities in Nigeria;
(v) this particular article of the Constitution is irrelevant because the right to education as claimed pre-existed the new Article and the Minister was aware, when affirming the deportation order pursuant to section 3, of such rights on the part of the second applicant and that the right to free primary education is a qualified right which has to yield to the State’s right to control irregular migration and

(vi) representations about the impact of deportation on the education rights of the second applicant should have been made under s. 3(3) of the Act of 1999 before the deportation order was made.

27. The scope of this appeal is limited by its nature as a review of the refusal to revoke deportation orders. It is not unusual for reasons to be given in a single document and to consider both parent and child’s claims together. In Nwole v. Minister for Justice [2008] 2 IR 48, the Supreme Court held this was lawful where the child was included in the parent’s claim. In Oladineji (A Minor) v. Refugee Applications Commissioner [2009] IEHC 478, a parent’s earlier unsuccessful claim was a ground for rejecting a child’s claim where no material difference was proffered. It is accepted that outside of these circumstances, individual consideration is required.
28. The executive power granted to the Minister by s. 3(11) of the 1999 Act to revoke or amend deportation orders carries with it significant scope. No particular form or manifestation of that power is required and it is for the Minister to decide how to determine a joint revocation request. The latter is not required to undergo the same analytic scrutiny as outlined in s. 3(6) of the 1999 Act. Finally, the coming into force of Article 42A could have had no material impact on the Minister’s decisional calculus as the right asserted predates its introduction and CI v. Minister for Justice [2007] IEHC 302 confirms that no additional weight is given to the child’s interests in immigration matters.
Discussion

(i) Did Article 42A.1 confer on the second applicant constitutional rights inter alia to education which fell to be put into the balance against the interests of the State?
(ii) Did the analysis on which the decision was made in require a separate consideration of the individual position of the second appellant in light of her circumstances?

(iii) Was the conclusion that there was a functioning education system in Nigeria irrational?

(iv) Does section 5 (1) (m) of the Act of 2000 apply to a refusal to revoke a Deportation Order?

(v) There is in addition the question of the injunction: was it correct for the High Court to refuse to enjoin deportation pending the determination of the appeal from his judgment and on what basis is it appropriate and just to make such a decision?

29. Article 42.4 of the Constitution expresses the obligation of the State to provide for free primary education. The trial judge held that the right of a child to such education is one of the natural and imprescriptible rights to be enjoyed under Articles 40.3, 41, 42 and 42A. The last mentioned provision is not specific to education or to immigration but applies generally in respect of rights and children. It is not that it does not apply to those areas but rather that it is not particular to them. It is also clear that the new Article is not restricted to citizen children.
30. The trial judge was firm in his view that children residing in the State are entitled to avail themselves of the right to education specified in Article 42.4. He found it difficult to see how Article 42A made any material difference to that express provision. However, accepting that the second appellant had a constitutional right to primary education that was not and could not be absolute. Humphreys J. cited Saunders v. Mid-Western Health Board (Unreported, Supreme Court 11th May 1987); Sinnott v. Minister for Education [2001] 2 IR 545 and Oguekwe.

31. The judge dissented from the prediction made obiter in C.O.O. (Nigeria) the Minister for Justice (No.1) [2015] IEHC 139 by Eagar J. that the situation of immigrant children claimants would change remarkably for the better if Article 42A became law. It seems that the judge in that case was referring to the best interest of the child test that is specified in the new Article for certain decisions which do not include immigration, a point that is emphasised by this court in Dos Santos. These sympathetic observations in anticipation of the enactment of a measure that had no relevance to the case under discussion do not amount nor I think were they ever intended to be a legal interpretation of the impact of Article 42A in a particular future case. It is understandable of course why the appellants should use them to support their contentions. I would respectfully adopt the views of Humphreys J. on this question.

32. In circumstances where there is a specific constitutional right dealing with the child’s entitlement or the entitlement of children generally, it is not a reasonable inference that this general provision of protection of rights should be considered to have altered the existing obligations of the State. But let us assume that Article 42A did impose some extra obligation. The question arises as to what is the nature of the obligation. It might be argued that Article 42.4 is limited to citizen children or to children lawfully present in the State. If that were the case, an argument could be made under the new provision that it would be unlawful to continue the exclusion of children not lawfully present. But how can the new provision be construed as giving entitlement to a child to live in the State simply for the purpose of education when he or she is not otherwise permitted to be here? There is not a freestanding right provided by the Constitution to all children wherever located to be educated in Ireland if they can once come to reside here.

33. The real question is not whether the second applicant is entitled to free primary education in the State while she is living here, but whether she is entitled to live here in order to avail herself of free primary education. The answer is that she is not.

34. In my view, the situation is clear. The trial judge was correct to hold that Article 42A does not amount to a bar to the deportation of a child who is undergoing primary education in the State. The new Article does not give support to the claim made by the second appellant and it does not actually make any material difference to her education rights. While she is undoubtedly entitled to avail herself of the right to education while she is living here that does not mean that she has a right to live here in order to avail herself of education.

35. Ultimately, the question is whether the educational rights that the second applicant is entitled to enjoy in the State represent a barrier to deportation. I agree with the trial judge that they cannot do so. A contrary view would make the State’s immigration policy impossible to implement. Any child who happened to be in the State whether legally or illegally would have the entitlement to have individual evaluation of his or her claim to remain here. Secondly, the Minister would have to measure the educational opportunities in the destination country against Irish provision. This would be irrespective of how the child came to be in Ireland. In the instant case, it would also mean that the unlawful course adopted by the child’s mother redounded not only to the very great advantage of the child but also by extension to her mother.
Individual Consideration
36. The appellants also rely on the decision of Eagar J. in C.O.O. for the contention that the Minister’s consideration of BMA’s case was fatally flawed because it was carried out in conjunction with her mother’s application and was not performed as a discrete exercise.

37. I do not consider that the circumstances of the two applicants had to be addressed separately and individually by the Minister. Such an obligation does not arise in a consideration of a deportation order under s. 3(6). There are, of course, circumstances which will necessitate individual assessment. One of those is in the case of a citizen child who because of citizenship has prima facie a right to live in the State. My point is that there is not a general rule that says that any consideration of such a case as the present, involving a mother and young daughter, necessarily demands individual assessment. The suggestion is that irrespective of any criticism of the basis of evaluation of the cases or either of them, the mere fact of joint consideration invalidates the decision. Such a view is in my judgment erroneous as a matter of law. Insofar as the decision in C.O.O. holds that it is fatal to a decision if there is joint consideration, I think it is incorrect. Humphreys J. subjected the judgment to a detailed critique which it is unnecessary to repeat here. In this case, I do not think there is any basis for invalidating the Minister’s consideration of the revocation application on this ground. It is relevant that the application was put before the Minister on a joint basis comprising mother and daughter and it was reasonable to consider them together. The fundamental point in rebuttal of this submission is that there was not any reason for separate analyses in this case or these applications. I would accordingly hold that this ground cannot succeed. I think that a practice of giving completely discrete examinations might well be itself open to objection but obviously that is obiter.

38. The trial judge was correct to point out that a decision by the Minister under s. 3(11) to refuse revocation is different from one made under section 3(6) to make a deportation order. The approach of the court in an application for judicial review has to reflect the distinction. Humanitarian considerations are to the forefront when an order is being considered, although even then the Minister has a wide discretion. The question arises when a person resident in the State has been refused refugee status or subsidiary protection so that he or she has no continuing entitlement to live here. The situation before a decision has been made on asylum is, of course, entirely different because the applicant has a right to be and remain in the State pending determination of his or her claim for international protection. Once that is decided, however, the person does not have any right but can of course make a humanitarian case against a proposed deportation order. The Minister is obliged to consider the application in a manner that is consistent with fair procedures. There are always some arguments why a person should be permitted to stay and the Minister has to balance those against the national interest in preserving the integrity of the immigration system. Because the latter interest is necessarily public and general, to use the expression that characterises legislation, and the matters to be balanced against it are immediate, personal, and human the process of evaluating the claims is not an easy one. But when that is done, pursuant to s. 3(6), there is a certain finality about the decision to make a deportation order. The jurisdiction under section 3(11) has been discussed by Clarke and MacMenamin JJ. in decisions of the Supreme Court.

39. In Smith v. Minister for Justice and Equality & Ors [2013] IESC 4, Clarke J. noted:

“. . . a party cannot artificially create a new point by the simple expedient of making multiple applications for revocation of a deportation order. It is, of course, the case that a party is entitled to invite the Minister to revoke a deportation order at any time. Where, however, there has already being an application to revoke which has been refused and where the refusal either has not been challenged or where any challenge to such refusal has failed in the courts, then legal certainty requires that such refusal must be taken to represent a correct determination based on the facts and materials as they stood at the time of that refusal
. . .

It is only . . . new facts, materials or circumstances that the Minister is required to consider save to the extent that the Minister must, of course, if there truly are new facts, materials or circumstances which could be material to an overall assessment of the position, take an overall view of all the circumstances including those new matters addressed.” [at para.5.10]

40. In PO v. Minister for Justice [2015] IESC 64, MacMenamin J. held:
“[T]he 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. . ” [At paras.15-16]

Irrationality
41. The appellants merely assert that the Minister’s conclusion as to the educational system in Nigeria was “arbitrary, unfair and based on irrational considerations”. In circumstances where the consideration addressed the issue in light of the material submitted by the applicants, this bare contention cannot succeed.
42. My conclusions on these aspects of the appeal are therefore as follows. First, I do not think there is a right as claimed by the appellants to have the child’s education in Ireland recognised and protected by the State. The Constitution does not confer any such entitlement on the second appellant. Secondly, in light of that finding, I am in agreement with the trial judge that the new Article of the Constitution does not represent an altered circumstance for this child such that a radical revaluation of the case is called for and I think that the limited review envisaged by s. 3(11) was appropriate. Thirdly, the Minister was not obliged to make a comparison between the educational opportunities in Ireland and Nigeria before making a decision. That question was, as the High Court noted, a matter that was or could have been ventilated at the stage of consideration of the deportation order, pursuant to s. 3(6). Fourthly, the applicants have not shown that the Minister’s conclusion as to the education system in Nigeria was irrational.
Section 5 of the Illegal Immigrants (Trafficking) Act 2000

Section 5(1)(m) of the Act of 2000
43. A new s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was inserted by s. 34 of the Employment Permits (Amendment) Act 2014. The section imposes restrictions on the right of appeal that would otherwise be available in immigration cases. The question that arises in this appeal is whether the new s. 5(1)(m) of the Act of 2000 applies to a refusal to revoke a deportation order? The appellants’ notice of appeal accepted that a literal interpretation of the provision did not support their contention that it did not apply to a refusal so that leave was not necessary for a challenge. However, the plain intention of the legislature could not be ascertained from the Act as a whole and it followed that a restrictive interpretation curtailed the right of appeal otherwise provided by the Constitution. It followed that it was not appropriate to rely upon s. 5 of the Interpretation Act 2005. The respondent traversed these points and claimed that the appellants were not entitled to pursue this ground because they sought and obtained leave pursuant to the provision. It is useful to set out not only the particular para. (m) but also the rest of the subsection.

“Judicial review
5. (1) A person shall not question the validity of—

(a) a notification under section 3 (3)(a) of the Immigration Act 1999 ,
(b) a notification under section 3 (3)(b)(ii) of the Immigration Act 1999 ,

(c) a deportation order under section 3 (1) of the Immigration Act 1999 ,

(d) a refusal under Article 5 of the Aliens Order 1946 ( S.R. and O. No. 395 of 1946),

(e) a refusal under section 4 of the Immigration Act 2004 ,

(f) an exclusion order under section 4 of the Immigration Act 1999 ,
(g) a recommendation of the Refugee Applications Commissioner under section 13 (as amended by section 7 (h) of the Immigration Act 2003 ) of the Refugee Act 1996 ,

(h) a decision of the Refugee Appeals Tribunal under section 16 (as amended by section 7 (i) of the Immigration Act 2003 ) of the Refugee Act 1996 ,

(i) a refusal under section 17 (as amended by Regulation 34 of the European Union (Subsidiary Protection) Regulations 2013 ( S.I. No. 426 of 2013 )) of the Refugee Act 1996 ,

(j) a decision under section 21 (as amended by section 11 (1)(o) of the Immigration Act 1999 ) of the Refugee Act 1996 ,

(k) a removal order under Regulation 20(1) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006 ),

(l) an exclusion order under Regulation 23(1) of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 ( S.I. No. 656 of 2006 ),

(m) an order under section 3(11) of the Immigration Act 1999 ,

(n) a recommendation of the Refugee Applications Commissioner referred to in Regulation 6(2)(b) of the European Union (Subsidiary Protection) Regulations 2013 ( S.I. No. 426 of 2013 ),

(o) a decision of the Refugee Appeals Tribunal referred to in Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013 (S.I. No. 426 of 2013), or

(p) such other decision, determination, recommendation, refusal or order as may be prescribed by the Minister under subsection (9), made on or after the date on which section 34 of the Employment Permits (Amendment) Act 2014 comes into operation, otherwise than by way of an application for judicial review under Order 84 of Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (hereafter in this section referred to as ‘the Order’).”

Appellants’ Submissions
44. Under s. 5(1)(m) of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment) Act 2014, certain procedural restrictions are placed on an attempt by a litigant to challenge an order made under s. 3(11) of the 1999 Act. Where s. 5 of the 2000 Act is engaged, a litigant must seek leave to apply for judicial review. It is submitted that this procedure does not apply to cases which seek to challenge a “refusal to revoke an order” rather than an order itself. The logic underpinning this approach was articulated by Cooke J. in E.A.I. v. The Minister for Justice, Equality and Law Reform [2009] IEHC 334, noting “[n]o such formality is required for a refusal to revoke because it changes nothing”.
45. It is argued that there is no clear authority on the scope of asylum and immigration decisions which are captured by s. 5 of the 2000 Act. Moreover, any attempts at judicial expansion should be rejected on the basis this Court’s inherent appellate jurisdiction under the Constitution can only be restricted by legislation clearly intended to have such an effect. This position was upheld by O’Higgins CJ in People (Attorney General) v. Conmey [1975] IR 341 [see also the comments of Hamilton CJ. in Hanafin v. The Minister for Education [1996] 2 IR 321]. The Supreme Court, in A.B. v. The Minister for Justice [2002] IR 296 approved this approach in the specific context of s. 5 of the 2000 Act. Keane CJ noted that the right to appeal can only be “removed or abridged by a statutory provision which is clear and unambiguous”.

46. It is submitted the present case requires the court to apply the literal interpretation to clear wording of the 2000 Act [see NRA v. Celtic Roads Group (Dundalk) [2011] IEHC 71]. The s. 5(1) of the Interpretation Act 2005 allows the courts to construe the intention of the legislature where an Act is obscure, ambiguous, or if to do otherwise would lead to absurdity. There is nothing prima facie ambiguous about the Act in question. In Kadri v. The Governor of Cloverhill Prison [2012] IESC 27, Clarke J. outlined a number of factors which will be considered in the case of an alleged absurdity. Not only must there be a mistake which lead to the absurdity, but true legislative intention must be capable of being uncovered. The appellants highlight that no clear policy rationale can be derived from that would rectify the alleged absurdity. The mandate granted to the court is one of construction rather than rewriting, even where there seems to be an omission. As Denham J. (as she then was) noted in Howard v. Commissioner of Public Works [1994] IR 101:

“The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the Court should not speculate, but rather construe the Act as enacted.”

Respondent’s Submissions
47. As the Supreme Court emphasised in Re the Illegal Immigrants (Trafficking) Bill [2000] 2 IR 360, the purpose of s. 5 of the 2000 Act was to ensure that appeals were made in a timely manner for the benefit of the system and individual alike. It is submitted that the type of decisions that fall under s. 5(1) of the 2000 Act are likely to be negative in nature i.e. where an asylum seeker has failed in their application. This was also recognised in TD v. The Minister for Justice [2014] 4 IR 277 considering the border control purpose behind the 2000 Act.
48. It was the legislature’s intention that the procedural restrictions applied implicitly to the refusal to revoke a deportation order as well as the making of the order itself. Such a reading is required to prevent absurdity, where that concept is understood in the legal sense as being “out of harmony with reason or propriety” [Bennion on Statutory Interpretation]. The purpose of the 2000 Act was made quite clear in Re the Illegal Immigrants (Trafficking) Bill vis-à-vis its regulation of challenges to negative immigration decisions. It is submitted that it would be absurd if the decision to refuse to revoke a deportation order, one which reaffirms the initial negative outcome was exempt from the procedural restrictions entailed in the 2000 Act. If the court were to accept the appellants’ view, it would serve to defeat the intent of the legislature, thereby violating the principle in Nestor v. Murphy [1979] IR 326.
Discussion
49. The subsection specifies a number of different events that result from application of different parts of the immigration regime. There is a notification, a deportation order, a refusal, an exclusion order, a recommendation, a removal order and a simple order. For all of these events, the new restrictions apply. In respect of s. 3(11), the word used is “order”. We are dealing here with a refusal to revoke the deportation order. Refusal also occurs and is expressly mentioned in para. (d) of the subsection. That might suggest as a matter of interpretation that the legislature had it in mind to restrict an appeal only in the case of an order under s. 3(11) and not a refusal. The Minister concedes that a literal reading suggests that the provision only applies to orders made under s. 3(11) and not to decisions refusing revocation.

50. Humphreys J. held that the legislative purpose behind the new section 5 would be frustrated by a literal interpretation of s. 5(1)(m). It would limit the application of the paragraph so that it would only apply to “the almost unheard-of situation of an amended deportation order”. That is not consistent with the policy of the legislation generally or this particular measure.

51. I agree. I do not think that such an interpretation is legitimate. Under the subsection, the Minister has to make a decision which if it is in favour of the application will not be a matter for judicial review. It is clearly a decision and the same must apply for a refusal. Although para. (m) could have specified a refusal, it cannot be the case that a decision to refuse is somehow excluded as being different. There is no logical basis for that interpretation.

52. The process of consideration of an application to revoke a deportation order comes to a conclusion in a decision by the Minister. A decision under that subsection is specified in para. (m) so there is a clear statutory application of the restriction. It is, of course, true that any limitation of the right of appeal from the High Court to this court or the Supreme Court has to be expressed in clear and unambiguous terms, failing which the right continues to be available. Having said that, there is no room in this case in my view for any doubt that the legislature intended to impose this restriction on a revocation application or that it actually achieved its purpose.

53. It is fair to say as mentioned above that this question was not in dispute or serious dispute between the parties in a manner that could impact on the outcome of the appeal. The fact is that the High Court had authorised the appeal and so the issue was academic. It was nevertheless argued so the court had the benefit of the submissions of each side. In my view, the position is clear but I still think that this perhaps slight reservation should be entered.
The Test for an Injunction
54. As I stated above, I agree with the judgment of Irvine J on this matter.
Conclusion
55. Accordingly, and for all the reasons I have outlined above, I would dismiss the appeal.

 

 

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of October 2017

1. I have had the opportunity of reading the judgment of Ryan P. in relation to the substantive issues raised for this Court on the appeal and for the reasons which he has expressed I too agree that the appeal must be dismissed. I am also satisfied, for the reasons later stated in this judgment, that whilst technically moot in light of the determination of the substantive appeal, the appeal against the refusal of the injunction sought in the High Court should also be refused. It is to that appeal that this judgment is solely directed.

2. In circumstances where I find myself in modest disagreement with one particular aspect of the judgment of Humphreys J. in the High Court, that which concerns the principles to be applied by a court when faced with an application for a stay or an injunction to restrain deportation by members of a family, I have decided to address the matters material thereto in the course of this judgment. With that purpose in mind, I gratefully adopt the background facts to these proceedings which are set out by the President in the opening paragraph of his judgment and which, for the reader’s convenience, I will now repeat.

3. Ms. K.R.A., the first named applicant, was born in Nigeria in 1975. She married there and had three children. In early 2008, she came alone to Ireland while pregnant and sought asylum on the 10th March of the same year. Her baby, the second named applicant, B.M.A., was born four days later on the 14th March, 2008. The child is now 9 years of age, albeit that she is not an Irish citizen. Their asylum application was rejected and in March 2009, Ms. K.R.A. was notified by the Minister of an intention to make deportation orders. Solicitors on her behalf applied for subsidiary protection, but on the 9th November, 2009 that also was rejected. On the 18th November, 2009, the Minister made deportation orders in respect of both applicants and Ms. K.R.A. was required to present herself to the Garda National Immigration Bureau on the 8th December, 2009. She did not do so, but instead went into hiding from the authorities and remained underground for almost five years. Ultimately, she went to solicitors and through them, on the 23rd October, 2014, she made an application for revocation of the deportation orders pursuant to s. 3(11) of the Immigration Act 1999. That gave rise to an arrest and an application to the High Court under Article 40 with which we are not concerned. On the 18th May, 2015, the Minister refused to revoke the deportation order. On the 3rd June, 2015, the High Court (Faherty J.) granted leave to the applicants to bring these judicial review proceedings in respect of that refusal.

4. Humphreys J. refused to grant the applicants an injunction restraining their deportation pending the hearing of their appeal to this Court on the substantive issues as is set out in his judgment dated 28th November, 2016. That refusal has been appealed to this Court which has been asked to furnish its decision in respect of that refusal notwithstanding the fact that the injunction is technically moot in circumstances where this Court did not actually hear the appeal against the refusal of the injunction in advance of the substantive appeal.

The Test for an Injunction/Stay on Deportation in Asylum /Immigration Cases
5. The test to be applied on the appellants’ application for an injunction to restrain their deportation is that which is set out in the decision of Clarke J. in Okunade v. The Minister for Justice [2012] 3 IR 152. As is clear from his even more recent decision in Charles v. Minister for Justice [2016] IESC 48, the test to be applied is the same, irrespective of whether the application is for an injunction restraining deportation pending trial or for a stay on deportation pending appeal. In a number of the decisions to which I intend to refer, the application made was for an injunction in circumstances where the more appropriate application would have been for a stay to restrain the implementation of a legally binding measure. To avoid any confusion, I will simply adopt the terminology used in the decisions concerned.

6. Okunade provides a clear step-by-step guide for a court faced with an application for a stay or an injunction to restrain deportation. That guide is helpfully summarised in the following manner at paras. 4 to 6 of the head note to the judgment:-

“4. That, in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings, the court should apply the following considerations:-

(a) the court should first determine whether the applicant had established an arguable case; if not the application must be refused, but if so, then;
(b) the court should consider where the greatest risk of injustice would lie. In doing so the court should:-

(i) give all appropriate weight to the orderly implementation of measures which were prima facie valid;
(ii) give such weight as was appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,

(iii) give appropriate weight (if any) to any additional factors which arose on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings; but also,

(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful;

(c) the court should, in those limited cases where it was relevant, have regard to whether damages were available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,
(d) subject to the issues arising in the judicial review not involving detailed investigation of fact or complex questions of law, the court could place all due weight on the strength or weakness of the applicant’s case.”

“5. That significant weight needed to be attached to the implementation of decisions made in the immigration process which were prima facie valid. There was importance to the exercise by the State of its right to control its borders and implement an orderly immigration policy. Meadows v. Minister for Justice [2010] IESC 3,[2010] 2 IR 701 considered.”
“6. That the disruption of family life which had been established in Ireland for a significant period of time was a material consideration for the court in deciding whether to grant a stay or an injunction restraining deportation pending the hearing of leave to seek judicial review. All due weight needed to be attached to the undesirability of disrupting family life involving children in circumstances where, after a successful conclusion of the proceedings or any other process, the children concerned might be allowed to remain in or return to Ireland. On the facts, the trial judge erred in failing to afford sufficient weight to that factor.”

7. In addition to the aforementioned factors, Clarke J. mentioned two further matters to be considered when addressing the balance of justice. First, whether it could credibly be suggested that the applicant would be materially prejudiced in the presentation of their claim if they were to be deported pending trial. Second, whether the applicants, if successful in their substantive proceedings, would be entitled as of right to remain in this jurisdiction as opposed to nothing more than having a re-hearing or a reconsideration of a decision earlier made.
8. It is important also to note the emphasis which Clarke J. placed upon the distinction between the matters which are appropriate for a court’s consideration when deciding whether or not to grant a stay or interlocutory injunction and those which are to be applied when determining the substantive rights of the parties, a matter to which I will later return.

9. What Clarke J. makes very clear in the course of his judgment in Okunade is that the court must recognise when making its decision on an application for a stay or an injunction that the risk of injustice is an inevitability. That being so, the court must seek to put in place, pending the hearing of the relevant proceedings or appeal, a regime which will minimise the overall risk of injustice.

10. Finally, of particular importance, in my view, is the statement made by Clarke J. at para. 94 of his judgment to the effect that the weight to be attached to the considerations therein identified will vary both from type of case to type of case and by reference to the individual facts of the case in question. In other words, there can be no “one size fits all” approach to applications for an injunction or a stay.

Judgment of Humphreys J.

11. The first issue addressed by the trial judge as required by Okunade was to decide if the applicants could establish the existence of arguable grounds of appeal. That he resolved this issue in their favour is perhaps not surprising in circumstances where he had granted them leave to appeal his decision on two grounds. It is relevant to note that later in his judgment, when considering the likely strength of the grounds of their appeal, he considered their prospects of success to be no more than modest.

12. Humphreys J. then dealt sequentially with the guidance given in Okunade and as summarised at para. 4(b)(i), (ii) and (iv) of the headnote to the judgment. In doing so, he concluded that the orderly implementation of measures which are prima facie valid, in this case the deportation orders, militated against granting the relief sought. Likewise, he considered that the public interest in the orderly operation of the immigration regime militated in favour of refusing the stay. Further, correctly in my view, he referred to the “measure” under challenge by the applicants for the purposes of highlighting that there was no challenge to the protection process itself, or indeed to the deportation order. Their challenge was confined to the refusal of the Minister to revoke the deportation order, a fact that militated strongly against granting the injunction sought.

13. Such reservations as I have with the judgment of Humphreys J. concern that part of his judgment which appears below a heading entitled ‘Evasion or Misconduct by the Parent and whether this can be held against the Child’ and which commences with the following statement:-

“11. A further factor is the applicants’ conduct in evading the GNIB, which strongly militates in favour of refusing an injunction, unquestionably so as regards the first named applicant.”
The trial judge then proceeds to consider the implications of the mother’s conduct on her child in the context of their application for an injunction to restrain their deportation pending appeal.
14. In a lengthy discussion, which focuses upon the decision of this Court in Chigaru v. Minister for Justice and Equality [2015] IECA 167, the judgment of the European Court of Human Rights in Butt v. Norway (Application no. 47017/09, ECHR, 4th December, 2013) and that of the Supreme Court in P.O. v. Minister for Justice and Equality [2015] IESC 64, [2015] 3 I.R. 164 the trial judge proceeds to explain how, in his view, when deciding whether to grant a stay or an injunction restraining deportation, the court should, in general, identify children with the wrongdoing of their parents for their failure to comply with such an order, or to, as in the present case, report to the GNIB. He concluded that the decision of the Supreme Court in P.O. and that of the European Court of Human Rights in Butt were authority to support his conclusion that it was not unjust to generally identify children with their parent’s misconduct when considering, in the context of an application for an injunction or a stay on deportation, whether the balance of justice favoured the child applicant remaining in the State. In so deciding, he considered himself free to depart from the decision of this Court in Chigaru.

15. In circumstances where I am not satisfied that the aforementioned decisions are authority for the proposition in respect of which they are cited, and the fact that unless displaced by a judgment of the Supreme Court, I believe it would be inappropriate to depart from the view of Hogan J. in Chigaru with which I agreed and it is necessary, in my view, to consider in some greater detail the aforementioned decisions.

16. In Chigaru the first and second named applicants were nationals of Malawi and were the father and mother of the third and fourth named applicants. The third named applicant was born in Malawi in 2007 and came to Ireland with her mother in 2008. The fourth named applicant was born in Ireland in July 2008. The applicants’ asylum applications were rejected by the Refugee Appeals Tribunal in November 2009. Thereafter, deportation orders were made under s. 3 of the Immigration Act 1999 in respect of all four applicants in August 2011. They then unsuccessfully applied for subsidiary protection after which they sought leave of the High Court to challenge the validity of the deportation orders and the orders refusing subsidiary protection. Those applications were dismissed by the High Court (Cooke J.) in a decision dated the 19th April, 2012.

17. By notice of appeal dated the 9th May, 2012, the applicants then appealed the aforementioned High Court decision to the Supreme Court. That appeal was subsequently transferred to this Court pursuant to Article 64 of the Constitution by order of the Chief Justice dated the 29th October, 2014. While that appeal was pending and as a result of correspondence which emanated from the applicants’ solicitors, the respondents became aware of the whereabouts of the applicants with the result that the Minister sought to give effect to the earlier deportation orders. It was in such circumstances that an application was made to this Court for an interlocutory injunction restraining their deportation pending the outcome of the appeal. At the time of that application, the third and fourth named applicants were, respectively, seven and eight years of age.

18. Whilst it is true, as was stated by Hogan J. in the course of his judgment, that the applicants managed to stay in the country through “subterfuge”, it was common case that their appeal had been pending since early 2012 and was still awaiting a hearing date when the injunction application was heard by this Court. During all of those years, the applicants had carried on a normal family life in Ireland and their children were both enrolled and fully participating in primary education. Their presence in Ireland was not in any true sense covert, unlike the position of the applicants in the present proceedings. It is to be noted that Clarke J. in the course of the appeal from the decision of this Court in Chigaru (Charles v. Minister for Justice Equality and Law Reform [2016] IESC 48) observed that the family had likely remained in communication with other State agencies for the purposes of PRSI and Social Welfare. Their solicitors had remained in communication with the respondents concerning their long awaited appeal which, somewhat akin to what had occurred in Okunade, had been hopelessly delayed without fault on their part. That is not to ignore the fact that there were valid orders in being concerning their deportation and they had not reported as required to the GNIB.

19. Hogan J. in the course of his judgment in Chigaru first considered whether the applicants had made out an arguable case as per the guidance provided by Okunade. He compared the facts of the case before him to those in M.M. v. Minister for Justice [2012] E.C.R. I-000 (Case C-277/11) where the Minister, in rejecting an application for subsidiary protection, had relied to a large extent on adverse credibility findings contained in the earlier asylum decision made by the Refugee Appeals Tribunal. In M.M., the Court of Justice had been asked to rule upon a question referred by Hogan J. sitting as the High Court judge and later on a second question referred by the Supreme Court when hearing the Minister’s appeal from Hogan J.’s decision.

20. The Court of Justice ruled that where a Member State had chosen to establish two separate procedures, one following upon the other, for the purposes of examining asylum applications and applications for subsidiary protection, it was important that the applicant’s right to be heard was fully guaranteed by both procedures. It was, it stated, for the national court to ensure the observance in each of those procedures of the applicant’s fundamental rights, and more particularly, their right to be heard, in the sense that they had to be afforded the opportunity to make known their views before the adoption of any decision to refuse the protection requested. Based upon that ruling, Hogan J. in M.M. v. Minister for Justice and Law Reform (No. 3) [2013] IEHC 9, [2013] 1 I.R. 147 quashed the decision to refuse subsidiary protection on the basis that the Minister had relied upon adverse credibility findings contained in the earlier asylum application with the result that the applicants’ right to be heard had not been protected.

21. In Chigaru, relying on the last mentioned decision, Hogan J. concluded that on the facts before him there was much to suggest that the subsidiary protection decisions which were under challenge had relied heavily on the credibility analysis that had been conducted at the earlier asylum application and that such credibility findings had infected the subsidiary protection decision itself. Indeed, he went so far as to set out in his judgment the facts upon which he relied to support such likely infectivity. It was for these reasons that he concluded, for the purposes of the injunction application, that the applicants had established a fair case to be tried.

22. Having so concluded, Hogan J. then turned to consider what he referred to as the “balance of convenience” which the High Court judge quite correctly, in my view, observed should have been termed the “balance of justice”. Nothing at all turns upon the conflation of these terms as it is clear that what Hogan J. was assessing was where the balance of justice was to be found in the context of the interlocutory application under consideration. In this regard, Hogan J. once again referred to the decision of Clarke J. in Okunade and in particular to that section of his judgment where he stated:-

“[119] However, I feel that it is not possible, on the facts of this case, to overlook the fact that one of the applicants is a child of some four years of age who has known no country other than Ireland. It is hardly the fault of that child that the substantial lapse of time involved in this whole process has led to such a situation. Rather, that current status is a function of the lack of a coherent system and sufficient resources. As pointed out earlier a significant disruption of family life is a countervailing factor which, provided it be of sufficient weight, can be enough to tip the balance in favour of the granting of a stay or an injunction.
[120] On the facts of this case, I have come to the view that the trial judge was wrong in failing to afford sufficient weight to that factor and was, therefore, wrong in failing to grant an injunction restraining deportation until the hearing of the application for leave.”

23. In considering where the balance of justice was to be found, Hogan J. relied strongly upon the fact that the third and fourth named applicants, being the children of the first and second named applicants, had been the innocent victims of their parents’ wrongdoing, which consisted of their deliberate failure to comply with their reporting obligations with the Garda National Immigration Bureau (GNIB). He was satisfied that it would be entirely unjust to visit the children with the consequences of such wrongdoing. Further, having regard to their age, the fact that they knew nothing of any country other than Ireland and were well established in their school and community, Hogan J. concluded that the balance of convenience favoured granting them a stay on their deportation pending the hearing of their appeal. At para. 37 of his judgment concerning the children, he said as follows:–
“They have lived all (or, in the case of the daughter, effectively all) of their lives in this State. The deportation of these children to Malawi would be massively disruptive for them, as it would have huge implications for their schooling, friendships and family structures. In the light of the Supreme Court’s decision in Okunade this is a factor which weighs heavily when determining where the balance of convenience lies.”
24. Hogan J. went on to conclude that granting the children the injunction to which they were entitled was of little use to them if they were not to have the care and company of their parents, which he described as a core constitutional value inherent in Articles 41, 42 and 42A of the Constitution. Whilst not specifically so stated, it is to be inferred from his judgment that he recognised that the children would have to leave the jurisdiction to remain with their parents if the injunction sought was not granted. As for the parents’ rights to an injunction, he concluded that viewed in isolation their applications had little to commend them. However, given that the children had a compelling interest in having their parents look after them, it followed that it was necessary to grant an interlocutory injunction restraining their deportation as otherwise, the children’s constitutional rights to the care and company of their parents would be compromised.
Chigaru in the Context of the Within Proceedings
25. It is clear from the judgment of Humphreys J. in the present proceedings that he rejected the submission made by counsel for the applicants that the decision in Chigaru had, in some way simplified the test for an injunction restraining deportation, as set out in Okunade. In doing so, he observed that only the Supreme Court could modify the law as laid down in that decision. Further, concerning the decision in Chigaru at para. 4 of his judgment, he noted that the Court of Appeal had not purported to interfere with the test as advised in Okunade and indeed had expressly stated that it was applying Okunade to the facts of that case.

26. However, Humphreys J. expressed concern that Hogan J. had inadvertently overlooked the decision of the European Court of Human Rights in Butt v. Norway (Application No. 47017/09, ECHR, 4th December, 2012) which he considered crucial to the issues under consideration in Chigaru and, I infer from his judgment that he was of the opinion that had it been considered, the injunction might or ought not to have been granted. It is accordingly necessary to consider briefly the decision in Butt.

27. The essential facts of Butt are as follows. The applicants were brother and sister born in Pakistan in 1985 and 1986, respectively. They first arrived in Norway with their mother in 1989 and were granted residence permits and then in 1995, settlement permits. An investigation by the Norwegian authorities revealed that they had been living in Pakistan for much of the period between 1992 and 1996. This resulted in a decision in 1999 to withdraw their settlement permits on the basis that they had provided false information. The children were apprehended in 2001 with a view to deporting them. However, not wishing to deport them unaccompanied, the authorities allowed the children to remain in Norway as they were unable to locate the mother until 2005 when she was deported to Pakistan where she died in 2007. The children lived with an aunt and uncle in Oslo during this time. The brother was convicted of aggravated assault and a number of other offences which led to a decision to expel him indefinitely in 2005. A lengthy court process ensued with several appeals culminating in 2008 where the Bogarting High Court found against the applicants, upholding the decisions to deport them on the basis that they could not rely upon the family life protections provided for in Article 8 of the ECHR in circumstances where that family life had been established while one or more of them did not have permission to remain in Norway.

28. The European Court of Human Rights, when it came to consider the decision made by the Norwegian Court, held that the applicants had established substantial family and private life links with Norway and that to remove them would be a breach of their rights under Article 8 of the ECHR. It concluded that the Norwegian authorities had not acted within the permitted margin of appreciation when they had sought to strike a fair balance between the public interest in ensuring efficient immigration control and the applicants’ interests in remaining in Norway in order to pursue their private and family life.

29. What is important in the context of both the decision of the High Court in these proceedings and that of this Court in Chigaru is the fact that in Butt, the European Court of Human Rights did not fault Norway’s strong immigration policy considerations which militated in favour of identifying children with the conduct of their parents, stating that to do otherwise might encourage parents to exploit the situation of their children in order to secure a residence permit for themselves.

30. Humphreys J. was clearly correct as a matter of law when he stated that the ECtHR in Butt had accepted Norway’s argument that a child should generally be identified with the conduct of its parents and that when considering the fair balance to be struck between the public interest and the family rights of the individual, an important factor was whether the family life relied upon had been established at a time when the immigration status of one of them was precarious.

31. All that said, it is important when it comes to considering the import of the decision in Butt to reflect upon the specific circumstances in which it was made. First, the decision was made by the European Court of Human Rights in the context of the substantive proceedings in which the Bogarting High Court had considered the right of the applicants to reside in Norway on a permanent basis based upon the family life which they had enjoyed there over the relevant period. Thus, the statements of principle espoused in that judgment must be seen in that context. The court was not engaged upon a consideration of Article 8 family life protections in the context of an application for a stay on deportation pending the determination of an appeal within its international protection process and which was considered to have a reasonable prospect of success, as was the case in Chigaru. Indeed, it is perhaps relevant to note that the Immigration Appeals Board in Butt had decided to stay the implementation of the applicants’ deportation to Pakistan until the conclusion of their substantive proceedings.

32. It is also clear that in Butt, the decision of the Norwegian court under review was one which had been made absent any regard for the considerations set out in Okunade and which bind this court when dealing with an application for an injunction or a stay on a deportation order. The decision of the Court in this jurisdiction in such circumstances must be made so as minimise the risk of injustice, and in making its evaluation, the court must attach all due weight to the undesirability of disrupting family life involving children in circumstances where, at the conclusion of the proceedings or some other process, the children concerned might be allowed to remain in or return to the State.

33. I find it difficult to see how a court, if satisfied that children who had applied for an injunction or a stay on their deportation might be allowed to remain in Ireland following the hearing of their appeal and a renewed application for subsidiary protection, could identify those children with the wrongdoing of their parents in their failure to comply with deportation orders whilst meeting its obligations, first, to attach all due weight to the undesirability of disrupting family life involving children, and second, to act so as to minimise the risk of injustice. By identifying children at that stage of the legal process with the wrongdoing of their parents, the court would likely be drawn into refusing the stay or injunction sought, which order would have the effect of bringing about a fatal disruption of family life as it was known at that time. I should say that when I refer to misconduct in this context, I confine my observations to misconduct of the type under discussion in Chigaru where the parents had failed to report to the GNIB, rather than misconduct of a criminal nature which poses a risk to the public at large and which might warrant identifying the children with their parents’ misconduct in the public interest.

34. I consider it relevant that in Okunade, when dealing with the disruption of family life, what Clarke J. concentrates on is the effect that a successful conclusion to the proceedings or some other process would likely have on the children when it comes to their entitlement to remain in or return to Ireland. In this regard, I assume his reference to “some other process” was intended to capture an application for subsidiary protection given that it is such a crucial part of the international protection process. Thus, it appears to me that Clarke J. invites the court to weigh in its consideration the children’s rights not to be disrupted in their family life separate from any consideration of the rights of their parents. If the court were to align children with their parents’ misconduct as a matter of general principle when assessing where the balance of justice lies, there would seem to be little point in emphasising and identifying this specific category of applicant, i.e., the child who might ultimately establish a right to remain in or return to Ireland, and more particularly, their right not to have their family life unnecessarily disrupted at that point in the legal process. In this regard, it is relevant to note that the threshold at which this consideration is relevant would appear to be relatively low. It is said to apply when a child can demonstrate that they “might” be entitled to remain in Ireland. Further when it comes to a consideration of that issue, the applicant does not have to establish that this entitlement will necessarily be established within the proceedings then pending before the court but might arise as a result of some “other process” (emphasis added).

35. I have no difficulty with the proposition that in certain circumstances it may be appropriate or, indeed, necessary for a State, subject to its treaty obligations, to seek to control the entry of aliens into its territory and their residence there and to identify children with the conduct of their parents for such purpose. If a State were to do otherwise, parents might exploit the situation of their children in order to secure a residence permit for themselves. However, I consider any such principle is of limited application or significance on an application for a stay or injunction made by members of a family seeking to restrain deportation pending an awaited substantive determination within the immigration litigation process, and where the children within that family can demonstrate that at the end of the asylum or immigration process they might be permitted to remain in or return to the State. I say that recognising that every case must turn on its own specific facts as was made clear by Clarke J. in Okunade and that there can be no absolute rule for all cases.

36. It is also relevant to reflect upon the fact that when applicants who are members of the same family apply for a stay or an injunction to restrain their deportation, in many instances they will have been in breach of a deportation order at the time of their application. It follows that the disruption of family life upon which they might seek to rely for the purposes of that application will have been established, at least in part, at a time when their immigration status was precarious. I use the word “precarious” in the sense in which it was used in Butt to identify a period during which the applicants were in the jurisdiction when there was in force a legally binding measure requiring their deportation. However, that fact notwithstanding, the court in Okunade has made clear that in reaching its decision “all due weight” should be paid to the undesirability of disrupting family life involving children where there is a prospect that after their appeal or some other process they might be allowed to remain in Ireland. It was that direction that was followed by Hogan J. in Chigaru when, regardless of the fact that the parents had not complied with the deportation order made against them, he was not prepared to visit such wrongdoing on their children and thereby deny them the injunction to which he felt they would otherwise be entitled.

37. If the court on an application for a stay or interlocutory injunction, as opposed to on the hearing of any substantive proceeding within the immigration process, was to proceed on the basis of the principles as they emerge from the decision made on the hearing of the substantive rights of the parties in Butt, it seems to me that it would have to ignore the guidance prescribed in Okunade. Thus, for my part, I find it difficult to align the decision in Okunade with the principle that children in general should be visited with their parents’ wrongdoing at an interlocutory stage of the asylum process if they fall into the category of applicants which the court is satisfied might be permitted to remain in Ireland after the end of the process particularly in light of the stated requirement that the court should pay all due weight to the undesirability of disrupting family life.

38. That different considerations arise for a court depending upon whether it is dealing with an interlocutory application or a substantive hearing is emphasised by Clarke J. at paras. 111 to 114 of his judgment in Okunade. There, he refers to the fact that if applicants can demonstrate that deportation, even on a temporary basis, would cause more than one might describe as ordinary disruption, that fact could tilt the balance in their favour. He further indicates that material to the court’s consideration as to what is to happen to the family on a temporary basis pending trial or a leave application is the disruption to family life which has been established in Ireland for a significant period. In this regard, it is noteworthy that Clarke J. gives no specific direction as to whether, in that context, it is material to the balance of justice as to whether the applicants, during that period, may have been living in precarious circumstances by reason of being in breach of deportation orders. It is, however, to be inferred from his judgment that in certain circumstances the court would not weigh in the balance against applicants for an injunction restraining deportation the fact that they had been guilty of living in this jurisdiction in breach of a deportation order whilst their proceedings seeking to challenge such an order had been delayed, not through any fault on their part, but by reason of the complexity of the legal process itself, as was the case in Chigaru.

39. Finally, as to the different considerations that arise for a court depending upon whether it is dealing with an interlocutory application or a substantive hearing, the following brief extract from the judgment of Clarke J. in Okunade, where he considers the undesirability of disrupting family life involving children in circumstances where they might, following the hearing of their proceedings or some other process, be allowed remain in or return to Ireland, is of particular relevance:-

“[114] In that context, it is important to emphasise the distinction between, on the one hand, the considerations which are appropriate for a court considering whether to grant a stay or an interlocutory injunction, and on the other hand, the considerations which apply in determining the substantive rights of the parties”.
40. I also have considerable reservation about the advisability of taking a principle such as that which emerges from the decision of the ECtHR in Butt and treating it as the standard by which family life protections are to be measured or protected in this jurisdiction. While Article 8 ECHR is clearly engaged in proceedings of the nature under consideration here, it has to be remembered that the ECHR does no more than set down minimum standards which must not be breached by a Contracting State. That Norway as a State deciding to control the entry of aliens into its territory and their right to reside there by applying the most restrictive policy was consistent with its Article 8 treaty obligations does not mean that this is the standard of family rights and protections that ought to be applied by the courts of this country, particularly on an application for a stay or injunction restraining deportation, where the applicants can demonstrate that at the end of the legal process they may well be entitled to remain in Ireland.
41. Even in the context of decisions concerning the substantive rights of parties, it must be remembered that the decision in Butt was made in the context of a regime where the constitutional considerations which would require this Court’s consideration are unknown. The fact that the ECtHR has not sought to interfere with the manner in which Norway has chosen to operate its immigration policy when it comes to identifying children with the conduct of their parents, does not mean that the Irish courts should ignore the fundamental values associated with family life which are protected by Article 41 of the Constitution and that they should not strive to ensure that the Convention is not used to reduce the level of protection of those rights. After all, the institution of marriage is stated to enjoy “imprescriptible rights, antecedent and superior to all positive law”. Even where applicants are non nationals, the Irish State promises to recognise their family rights and to protect them given that these rights derive not from citizenship but from their nature as human beings.

42. In my view it is also quite wrong, as a matter of principle, to treat judgments of the European Court of Human Rights as if they automatically enjoy superior binding status in the legal hierarchy, akin to those of the Supreme Court or the Court of Justice. The judgments of the Court of Justice enjoy that status by virtue of the specific provisions of the Treaty on the Functioning of the European Union and, most especially, by reason of the consequence of Article 29.4.6 of the Constitution. It is true that the European Convention of Human Rights Act 2003 (“the 2003 Act”) gives particular effect “subject to the Constitution” to the Convention within our legal system, but even then, the incorporation of the Convention is subject to important qualifications.

43. The Supreme Court has made it quite clear that the Convention does not have direct effect in Irish domestic law: see, e.g., McD v. L. [2009] IESC 81, [2010] 2 IR 199, MD v. Ireland [2012] IESC 10, [2012] 1 I.R. 167. Section 4 of the 2003 Act requires the courts to take “due account of the principles laid down by these….judgments” of the European Court of Human Rights. It does not state that these judgments automatically bind domestic courts.

44. In reaching my conclusions I have taken into account the decision in Butt, namely that the ECtHR considered that the specific approach of the Norwegian State, in terms of its law and practice in relation to applications for permanent residence, was not a violation of the minimum standards prescribed by Article 8 ECHR. But this does not mean that an Irish court, bound as it is by considerations based on both Okunade on the one hand and Article 41 of the Constitution on the other, must abandon that jurisprudence simply by reason of the decision of the ECtHR in Butt.

45. It is, perhaps, unfortunate that when the Supreme Court came to consider the decision in Chigaru (under the title Charles v. Minister for Justice and Equality [2016] IESC 48), that because of the limited nature of the appeal, the court was not called upon to consider whether the approach adopted by Hogan J. was correct as a matter of law in this jurisdiction having regard to the provisions of the Constitution and the decision in Butt v. Norway. That being so, regardless of the views expressed by Humphreys J. in the High Court in the present proceedings, I would not be prepared to depart in any respect from the views expressed by Hogan J. in Chigaru with which I agreed.

46. Neither would I be prepared to resile from the judgment in Chigaru based upon the judgments of MacMenamin and Charleton JJ. in P.O. v. Minister for Justice and Equality [2015] IESC 64 which were delivered after this Court had heard the appeal in Chigaru but before it delivered judgement. I say this because I am not satisfied that the decisions are in any respect inconsistent with Chigaru. Neither do I consider them authority for the proposition that in general children should be associated with the wrongdoing of their parents for the purposes of considering their entitlement to an injunction or a stay on deportation.

47. The facts in P.O. to which I will now refer were admittedly removed from those in Chigaru, but they are nonetheless not too dissimilar from those which arise for consideration in these proceedings. The applicants, a mother and son, had sought an order quashing the respondent’s refusal to revoke a deportation order made against them. They also sought an injunction restraining their deportation pending their appeal to the Supreme Court in circumstances where there was in existence a valid and unchallenged deportation order similar to the instant case. The mother arrived in Ireland in September 2006. Her son was born here the following month and was eight years of age at the time of the High Court hearing. Her husband and his family remained in Nigeria, albeit that they were not estranged or divorced. Any family reunification could only happen in Nigeria. The mother’s siblings and parents were all living in Nigeria.

48. The applicants’ application to the Refugee Applications Commissioner for a recommendation that they be granted refugee status was refused. They did not appeal to the Refugee Appeals Tribunal. The applicants commenced judicial review proceedings which three years later they discontinued at which stage they were in Ireland illegally. They then received what is commonly referred to as the “three options letter”. As a result of alleged inadvertence, no application was made for subsidiary protection or leave to remain. On 17th May, 2012, the applicants received a letter from the Minister indicating that he had decided to deport them and advising that they were required to leave by the 3rd June, 2012. The Minister is, of course, entitled to revoke such an order under s. 3(11) of the 1999 Act and the applicants availed of the option to request same. However, their application was rejected and the deportation order was affirmed on the 25th February, 2013.

49. Judicial review proceedings were commenced in April 2013. In March 2014, McDermott J. in the High Court refused an order of judicial review quashing the respondent’s refusal to revoke the deportation order made by the Minister. On lodging a notice of appeal, the appellants applied for an injunction restraining deportation pending the determination of the appeal. As a result of complexities that do not need to be recorded here the Supreme Court only ended up hearing the applicants’ application for an injunction restraining their deportation at the time it came to hear the substantive appeal and to that extent the court’s decision on the injunction application at that stage was technically moot. However, material to the present proceedings is the fact that for the purposes of the injunction application, the appellants relied upon the effect that refusing the injunction would have on them in terms of the disruption to family life.

50. In the course of deciding the substantive appeal, MacMenamin J. concluded that the appellants had no legal entitlement to remain in the State after 2010. Consequently, Article 8(2) ECHR considerations of national security and public safety weighed in favour of their exclusion. He laid emphasis on the fact that the first named appellant must have been aware that her immigration status was precarious since 2010 that being the point at which the initial judicial review proceedings had been withdrawn leaving in place the un-appealed decision of the Refugee Applications Commissioner. Further, the deportation order on its face was valid and had not been challenged. It was in these circumstances that MacMenamin J. observed that an injunction could only be granted in exceptional circumstances, a statement of law clearly relevant to the facts in the instant case but not relevant on the facts in Chigaru.

51. It is also important to state that the decision of MacMenamin J. does not concern itself with family life considerations and the extent to which a child should be associated with their parents’ wrongdoing for the purpose of considering an application for an injunction restraining deportation pending an appeal. His sole consideration of the decision in Butt v. Norway was in the context of the substantive appeal and the appellants’ legal entitlement to remain in the State after the year 2010 following the discontinuance of their judicial review proceedings.

52. Charleton J., in the course of a lengthy judgment also considered, as the court had been requested so to do, the merits of the appellant’s application for an injunction to restrain deportation pending the outcome of the appeal. However, it is relevant to note that the only context in which Charleton J. considered the general principle that children should be identified with the wrongdoing of their parents as stated in Butt was in the context of his consideration as to whether the appellants had established an arguable ground of appeal. In this regard, at para. 32 of his judgment, Charleton J. refers to the fact that it was the appellants’ contention on the substantive appeal that the official of the Minister, when deciding on their application under s. 3(11) of the Act of 1999, had ignored their rights under Article 8 of the Convention to private and family life. It was in this context that he referred to the fact that the appellants’ situation in this country had always been precarious as a result of choices made by the first named appellant which included the discontinuance of the judicial review proceedings seeking to challenge the determination of the Refugee Appeals Tribunal, the fact that she had not applied for subsidiary protection or sought leave to remain in the State under s. 3 of the Act of 1999. He refers, to the fact that if children were not to be associated in general with the wrongdoing of their parents, they might exploit their children in order to secure a residence permit. However, his reference to the right to a residence permit makes clear that the conduct he is considering at this point in his judgment is material only in the context of the substantial rights contended for by the appellants. What follows is, in my mind, the only other material reference made by Charleton J. to the decision in Butt v. Norway:-

“35. . . The choices made on behalf of the first named applicant/appellant by his mother and next friend, and the second named applicant/appellant were a choice exercised on behalf of them both. In Butt v Norway (No. 47017/09), judgment of March 4th, 2013, of the European Court of Human Rights reiterated that a State party to the Convention is entitled to control the entry of non-citizens into its territory and their residence there, and accepted that immigration policy considerations would be undermined unless children were generally identified with the conduct of their parents.”
53. Having concluded that no arguable case sufficient for the grant of an interlocutory injunction had been made out, there was no need to consider the matter further. It should nonetheless be stated that in the course of his judgment, Charleton J. contrasted the facts in P.O. with those in Okunade and reaffirmed that the significant disruption of family life was a countervailing factor which could tip the balance in favour of granting a stay or injunction restraining deportation. However, on the facts under consideration the disruption to family life would, he was satisfied, be made up for by the prospect of the re-establishment of family life in Nigeria if the injunction were refused. Accordingly, I cannot read P.O. as authority for the proposition that Chigaru was possibly wrongly decided.
54. What emerges from the decision in P.O. is that whilst MacMenamin and Charleton JJ. both make reference to the decision in Butt v. Norway, neither do so in the context of an application for a stay or injunction restraining deportation. They do so only in the context of the substantive rights of the parties. Further, both judgments approve of the test advised in Okunade which emphasises the obligation of the court to make its decision with a view to causing the least possible disruption to family life if it is of the belief that at the end of the legal proceedings or other process, the child or children concerned may establish an entitlement to remain in or return to Ireland.

55. It is for the aforementioned reasons that I have come to the conclusion that the principle that children ought in general to be identified with the wrongdoing of their parents, certainly insofar as that wrongdoing relates to their failure to comply with a deportation order, is not a principle that should in general weigh against them in the court’s assessment of where the balance of justice lies when considering their application for a stay or injunction restraining their deportation once satisfied that they may ultimately establish an entitlement to remain in Ireland, and that the disruption to their family life, having regard to the period of time they have spent in Ireland would warrant such an approach.

56. For my part, I consider the principle which emerges from Butt v. Norway to be one which is of relevance principally, if not solely to the decision of the court concerning the substantive rights of the parties to remain in the State, even if it be the case that at that stage the principle may of necessity have to give way to the values guaranteed to the family in Article 41 of the Constitution. It is for these reasons that I cannot fully agree with the judgment of Humphreys J. from which I infer he considers the decision in P.O. supportive of the general proposition that for all purposes, including an application for a stay or injunction restraining deportation, children should be identified with the wrongdoing of their parents.

57. Further, for the reasons already referred to, I also cannot agree with Humphreys J. that it is not unjust generally to identify children with their parents’ misconduct, and in particular, their evasion of immigration measures when it comes to a consideration of the balance of justice on an application for a stay or injunction to prevent deportation. It seems to me that Okunade requires that the merits of the children’s likely success in their substantive claim be considered separately from that of their parents, and that they are to be afforded special protection from the disruption of their family life if it be the case that at the conclusion of the proceedings or some other process they might be entitled to remain in Ireland. It is to be remembered that the court, on the hearing of an application for a stay or injunction restraining deportation, is mandated to make its decision so as to avoid the greatest risk of injustice. I venture to suggest that a serious injustice would be perpetrated if, in circumstances such as presented in Chigaru, the Court had refused the injunction sought and the applicants succeeded both on their appeal and their subsequent application for subsidiary protection only to have been deported in the meantime to a country which the Minister ultimately concluded would expose them to a real risk of serious harm and from which they could not then return. However, any such concerns are now principally of historic interest by reason of the fact that pursuant to the European Union (Subsidiary Protection) (Amendment) Regulations 2015 (S.I. No 137 of 2015) an applicant for subsidiary protection now has a right to remain in the State until such time as their application has been determined and to this end are granted a temporary residence certificate. I should say that I assume that a court would consider that an application for subsidiary protection had not been determined if the validity of any such decision remained under challenge in judicial review proceedings.

58. For the purposes of considering what order would likely minimise the risk of injustice on an application for a stay to restrain deportation, I think there is little basis for drawing any real distinction between those applicants who are within the asylum process and those within the immigration process when it comes to considering the disruption to the children and family life should the application be refused. Clarke J. does not make such a distinction. To the contrary, when he refers to the possibility that the children might be entitled to remain in or return to Ireland he refers to that right arising either as a result of the proceedings or “any other process”. Where the distinction should in my view be drawn is where an applicant, as was the case in the present proceedings and in P.O., does not challenge the validity of a deportation order, and either makes no application for subsidiary protection or fails to challenge the refusal of such protection.

59. Neither do I agree with the statement made by Humphreys J. in the course of his judgment that the decision in Chigaru is to be read as condemning as unjust the strong immigration policy considerations of the Norwegian State which were considered permissible by the European Court of Human Rights in Butt. Hogan J. takes the view in Chigaru that Okunade affords children greater protection in respect of their family rights when it comes to a consideration of the balance of justice on an application to stay deportation pending appeal even if it is implicit in his reasoning that this standard is higher than those standards set by the Norwegian State which happened to meet the minimum standard required by the Convention. Neither do I accept as valid Humphreys J.’s overall criticism of the judgment in Chigaru. It is to be inferred from the judgment of Hogan J., even though it is not expressly so stated, that he was satisfied that the applicants might ultimately succeed on their application for subsidiary protection lawfully considered and for that reason the minor applicants fell into the category of claimant intended to be protected from the disruption of family life unless same could not be avoided.

60. The only method of ensuring that the children in Chigaru could benefit from the protection specifically provided for them by the decision in Okunade was for Hogan J. to consider their entitlement to an injunction separately from that of their parents and then to grant the parents an injunction so as to ensure the children would benefit from the injunction to which they were lawfully entitled. He was, I am satisfied, fully entitled to rely upon the children’s rights to the care and company of their parents for this purpose, absent which their entitlement to an injunction and the special consideration and protection to which they were entitled under Okunade would be negated.

61. The only other matter of some significance which emerges from the decision in P.O. in the context of the within appeal, and to which I have earlier made a brief reference, is the emphasis placed by Charleton J. on the fact that the deportation order had not been challenged and the challenge to the decision not to revoke the deportation order under s. 3(11) of the Act of 1999 had been dismissed by the High Court. Therefore, on the injunction application, the observations of McCracken J. in L.C. v. Minister for Justice, Equality and Law Reform [2007] 2 IR 133 at p. 155 applied:-

“In this case the “decision being appealed from” is a decision of the respondent made under s. 3(11) not to revoke a deportation order against the applicant. There is no appeal and can be no appeal from the decision of the High Court Judge refusing relief in relation to the deportation order itself. It has been held by the High Court that the deportation order is valid, and that finding cannot be challenged before this court. If the court were to grant an injunction such as is being sought by the applicant, the effect would be to thwart the operation of the perfectly valid deportation order and would, at least to some degree, prevent the operation of a perfectly valid and un-appealable High Court order.
There might indeed be circumstances, although it is hard to envisage them, where the Supreme Court might exercise its inherent jurisdiction to grant an injunction which could have this effect, for example it might conceivably be exercised when a previously unknown fact comes to light, being a fact which was unknown at the time of making of the deportation order, and which is one of such gravity as might stay implementation of the deportation order. No such case has been made out before us.”

62. Given that there had been no challenge to the deportation order or to the refusal of the application made for subsidiary protection in P.O., Charleton J. concluded that an injunction to restrain a deportation order could only be granted in exceptional circumstances. This precise point was made by Humphreys J. at para. 41 of his judgment in the present proceedings. However, an application for an injunction or stay on a deportation order in cases where there is a challenge to the deportation order or a challenge to a refusal of an application for subsidiary protection does not require the applicant to establish “exceptional circumstances”. I am satisfied that such applications are to be determined solely by reference to the principles outlined by Clarke J. in Okunade.
Application of the principles to the facts of the present case
63. Returning to a consideration of whether this Court, if it had been dealing only with the application for an injunction in advance of the hearing of the substantive appeal, would have been obliged to resolve that application in favour of the applicants, for my part, I am fully satisfied that it would not.

64. Strongly militating against the applicants would have been the fact that they fall within the category of applicant that must establish “exceptional circumstances” to obtain an injunction or stay restraining their deportation, as was correctly stated by Humphreys J. in that part of his judgment where he refers to the decision of McCracken J. in L.C. v. Minister for Justice, Equality and Law Reform. The applicants did not challenge the validity of the deportation orders or the refusal of the Minister to grant them subsidiary protection. Accordingly, even if successful on their appeal, the orders for their deportation would remain valid with the best they could hope for being a more sympathetic consideration by the Minister that he might revoke the deportation orders. This is a critical distinction from the facts presented in Chigaru where the applicants had advanced significant grounds of challenge to the validity of the subsidiary protection decision based on the judgment of the Court of Justice in MM.

65. Having considered the circumstances of the applicants as outlined in the affidavit of the first named applicant dated the 13th December, 2016, I cannot identify any exceptional circumstances such as would meet the requirement identified in L.C. Whilst not wishing in any way to minimise the very significant consequences for mother and child if returned to Nigeria, the matters to which she refers are not exceptional in the context of what is to be expected as a result of deportation. She refers, inter alia, to the disruption that deportation would have on their present lives and to the fact that the education system in Nigeria will afford her daughter less educational opportunities than she would have if permitted to remain in Ireland. She also claims that, if returned to Nigeria, her daughter will be exposed to a range of risks, including sexual molestation, oppression, child abuse, child mutilation and ill health, which would be avoided if permitted to stay in this country. Whilst sympathetic to these asserted risks, which, if true, would clearly cause great worry to any parent facing a return to Nigeria, these are concerns which are not specific to these applicants. These risks cannot be avoided unless the Minister were to take the view that all deportations to Nigeria should cease even in respect of persons who failed to establish asylum status or an entitlement to subsidiary protection. Any such decision would, of course, be for the executive.

66. However, even if the applicants were in a position to demonstrate the existence of exceptional circumstances and their application for an injunction to restrain their deportation was to be decided on Okunade principles, I am satisfied that the application would have to fail.

67. It is accepted that the appellants would have been in a position to demonstrate arguable grounds of appeal, as they had been granted leave to appeal the decision of the High Court, albeit confined to two legal issues. That being so, the question for this Court as per the decision in Okunade, would have been whether the greatest risk of injustice favoured the granting or refusal of the injunction sought.

68. As was stated by Humphreys J. in his judgment refusing the relief sought, the court must give all appropriate weight to the orderly implementation of immigration measures which are prima facie valid. That being so, of significant importance in the context of the present proceedings is the fact that the orders concerned are in fact valid as opposed to only prima facie valid as they were never challenged by the applicants. For that reason they should, in my view, carry much greater weight in the court’s assessment of where the balance of justice lies, than might otherwise be the case. Again, to repeat, their failure to challenge the validity of these decisions is in contrast to the position which obtained in Chigaru.

69. Also of importance is the fact that the applicants are not persons who, if their substantive proceedings were to prove successful, would be entitled as of right to remain in this jurisdiction. The deportation orders would remain valid. They would enjoy nothing more than the right to have the Minister reconsider his decision earlier made that they should be deported and it is difficult to see any reason why he would change his mind although that would be within his discretion.

70. Whilst it is perhaps to state the obvious, the applicants have failed at all stages of the protection process. They were refused asylum status and they failed in their applications for subsidiary protection and their failure to challenge these decisions in judicial review proceedings means that these decisions must be taken to be valid. Hence, it must be assumed that, unlike many other applicants whose applications for asylum or subsidiary protection are not at an end when they apply to restrain their deportation, the applicants would not be at any real risk in terms of their personal safety if returned to Nigeria even if it be the case that they seek to have the Minister exercise his discretion to permit them remain in this country for humanitarian reasons.

71. In such circumstances, I am not satisfied that the second named applicant is necessarily entitled to the same protection from the potential disruption to her family life, as per Okunade, as would be the case if she was still engaged in the protection process at the time of the injunction application as was the case in Chigaru. Further, given that the first named applicant was not in a position to demonstrate any realistic basis upon which the Minister, if obliged to reconsider afresh the request that he revoke the deportation orders already made, might do so, the second named applicant cannot be said to be a child who at the end of the process might be permitted to remain in Ireland so as to avail of the special protection against the disruption to her family life that would otherwise apply.

72. A number of other somewhat lesser factors would also have to be weighed in the balance by the court on the injunction application. The first of these is that, consistent with Okunade, weight must be attached to the public interest in the orderly operation of the asylum process, a factor favouring the refusing of the injunction. Second, the High Court judge considered the applicants’ prospect of success on their substantive appeal to be no better than modest, an assessment that I would have endorsed if considering the injunction application in advance of the substantive appeal.

73. Finally, the manner in which the first named applicant has dealt with her immigration status in this country would be material to the balance of justice in respect of her application insofar as it is material to the State’s right to control its borders and its ability to implement an orderly immigration policy. Her delay in applying to the Minister to set aside the deportation orders made is in stark contrast to cases such as Okunade and Chigaru where the applicants were at all times engaged in the prescribed process in their efforts to secure their claimed right and entitlement to remain in this jurisdiction. The applicants in those cases had not been responsible for any delay in their efforts to regularise their status at the time they sought to enjoin their deportation pending their appeal. The same cannot be said of the applicants here. Their asylum applications were rejected in March 2009 as was their application for subsidiary protection on the 9th November 2009, after which deportation orders were made on the 18th November 2009. It was not until 2014, following a period of five years, that the applicants than applied to the Minister to revoke the deportation orders made. This is a fact which I consider would have to be weighed against the first named applicant’s right to the relief sought.

74. For the aforementioned reasons, I am satisfied that the balance of justice would have favoured refusing the injunction sought, notwithstanding the outstanding substantive appeal.
Conclusion on the injunction appeal
70. The principles to be applied on an application for an injunction or a stay to restrain deportation are as set out by Clarke J. in his judgment in Okunade. However, as he makes clear, every application must be assessed on its own specific facts.

72. For the reasons discussed in some detail earlier in this judgment, I am satisfied that the trial judge was incorrect as a matter of law when he concluded that Chigaru was incorrectly decided by this court. I am also satisfied that the decisions in Butt v. Norway and P.O. are not good authority for the proposition that it is not unjust generally for the court to identify children with their parent’s misconduct when, in the context of an application for an injunction or a stay on deportation, it comes to consider where the balance of justice lies. To do so would, in very many cases, have the effect of totally undermining the principle which emerges from Okunade that requires the court to assess whether the child applicant has established that they might at the end of the proceedings or some other process be allowed to remain in or return to Ireland and if so, to attach all due weight to the undesirability of disrupting family life while those proceedings or that process is not at an end. In other words, while it might be both reasonable and just to associate children with the wrongdoing of their parents for the purpose of reaching a decision on the substantive rights of the parties, and there may even be cases where, at an interlocutory stage, this would be appropriate in seeking to establish where the balance of justice is to be found, generally children should not be associated with the wrongdoing of their parents on an application for an injunction or stay on deportation.

73. Notwithstanding my conclusions set out in the last preceding paragraph, applying the Okunade principles to the facts of the present case, I am satisfied that the trial judge was correct as a matter of law when he declined the application for the injunction sought.

P. v. Minister for Justice, Equality and Law Reform

[2001] IEHC 134; [2002] 1 ILRM 16 (2nd January, 2001)
T
JUDGMENT of Mr. T.C. Smyth delivered the 2nd day of January, 2001.
1. These cases are a random sample of a large number of cases of which I believe and consider to be of a representative character. The hearings took place separately but consecutively, Judgment being reserved in all cases as there many common characteristics and arguments adduced, through a number of different Counsel. The applications came before the Court under the procedure provided for by Section 5 (2) of the Illegal Immigrants (Trafficing) Act, 2000. The Section was considered upon reference to it by the Supreme Court, under the title ‘In the Matter of Article 26 of the Constitution and Section 5 and Section 10 of the Illegal Immigrants (Trafficing Bill) 1999: the Judgment of the Court was delivered on the 28th August, 2000.

2. The facts of the individual cases may be very briefly summarised as follows:-

 

The case of P.
3. He is a Romanian National and was an asylum seeker in the State in November, 1999. His application for asylum was refused by the Minister under the Refugee Act, 1996, on the basis that it was manifestly unfounded and he was so informed by letter dated 31st March, 2000 which informed the Applicant that he had failed to adduce evidence of persecution. This decision was unsuccessfully appealed and the Applicant notified by letter dated 5th July, 2000 a letter enclosed the Appeals Authority’s recommendation the deciding officer being Mr. Mick Quinn and the letter states (inter alia) as follows:-

“As a result of this refusal the Minister for Justice, Equality and Law Reform proposes to make a deportation Order in respect of you under the power given to him by Section 3 of the Immigration Act 1999.”

4. Following upon this letter Mr. Watters the Applicant’s Solicitor by letter 24th July, 2000 wrote to the Minister making representations that he be permitted to remain in the State on humanitarian grounds. This letter was followed up by another from Mr. Watter’s enclosing references favourable to the Applicant. The Minister made a Deportation Order dated 4th September, 2000, the concluding paragraph of which reads:-

“Now, I, John O’Donoghue, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by the said subsection (1) of Section 3, hereby require you the said F. P. to leave the State within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said Section 3, pursuant to subsection 9(a) of the said Section 3, and to remain thereafter out of the State.”
(The form of Deportation Order used in this and the other cases is identical, and is expressly provided for in S.I. No 319 of 1999 being the Immigration Act, 1999 (Deportation) Regulations 1999.
5. A letter of notice of the making of the Order is dated 19th October, 2000. In the cases upon which the Minister decided to make a Deportation Order refusing leave to remain on humanitarian grounds, the letters of notice are in a uniform format, and although they are individually addressed and bear distinguishing file reference numbers they are similar in content and read:-

“I am directed by the Minister for Justice, Equality and Law Reform to refer to your current position in the State and to inform you that the Minister has decided to make a Deportation Order in respect of you under Section 3 of the Immigration Act, 1999. A copy of the Order is enclosed with this letterIn reaching this decision the Minister has satisfied himself that the provisions of Section 5 (prohibition of refoulement) of the Refugee Act, 1996 are complied with in your case.
The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interest of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State.”

6. The letter proceeds to indicate a number of consequential requirements.

7. While there is no averment in the Applicant’s Affidavit as to the date of receipt of the Order and Notice, no point has been taken by the Minister and it is conceded that the application was made within the time limited by Section 5 of the Act of 2000 as appears from exhibit FP1. The Applicant, perhaps through his Solicitors had secured copies of letters of notice and copies of Deportation Orders sent to Mr. G.N., Ms. M. P. and Mr. C. B. (the latter being one and the same person as is named in the title of the third case referred to herein).

The case of L.
8. He is a Romanian National, by trade a locksmith, and was an Applicant for asylum in the State. He applied on or about 10th August, 1999, having completed an application form he was called for interview which took place on 30th May, 2000. His application was refused and he was so notified by letter dated 22nd June, 2000 which informed the Applicant that:-

(i) the application did not show on its face any grounds that he was a refugee
(ii) that the leaving or not returning to his country of nationality did not relate to fear of persecution
(iii) that without reasonable cause, he made false or misleading representations of a material or substantial nature in relation to the application
(iv) that he failed to adduce evidence of persecution.
9. The Applicant appealed that decision but the appeal was unsuccessful and the Applicant was duly notified by letter dated 15th August, 2000 that the refusal was on the basis that his refugee status within the State was manifestly unfounded. This letter was signed by the deciding officer Linda Grealy which enclosed the Appeal’s Authority’s recommendation. As in the case of P the recommendation was only sent to the Applicant and his legal representatives. In the events the Refugee Legal Service applied by letter dated 5th September, 2000 to the Minister on the Applicant’s behalf to remain in the State on humanitarian grounds. The representations were not successful and the Minister signed a Deportation Order dated 16th November, 2000 of which, the Applicant was given notice of by letter 23rd November, 2000 signed by one Wendy Murray of the Repatriation Unit, Immigration Division of the Minister’s Department. The Order and letter of the notice of the making of the Order are in the same terms as in the case of P.

10. The Applicant’s application for leave to apply for Judicial Review as provided for under Section 5(2) of the Act of 2000 was outside the period of 14 days, but I was satisfied that there was good and sufficient reason for extending the period which I did on the hearing. [Mr. Bradley for the Minister correctly did not press the issue unfairly and no point arises for determination in this regard].

The case of B.
11. He is a Romanian, by trade a metal worker. He was an Applicant for asylum in the State. It appears that he arrived in Ireland on or about 21st April, 1997 and wished to claim asylum. An application for same was apparently made, although not exhibited. However a report was made of an interview with the Applicant dated 2nd June, 1998. A decision of the Minister to refuse the Applicant refugee status was made and conveyed to him on 27th July, 1998. On 18th August, 1998 the Applicant married another Romanian person who was and still is in Ireland, one spinster N. A. who status and entitlement to remain in the State is not before the Court. A letter dated 25th September, 1998 was written to the Respondent on behalf of the Applicant, by his Solicitor Mr. James Watters indicating the Applicant’s intention to appeal the Minister’s decision. By letter dated 15th January, 1999 addressed to the Applicant’s Solicitors and signed by Annmarie Quarray of the Asylum Appeals Unit of the Respondent’s Department refused to recognise the Applicant as a refugee on a consideration of all of the evidence provided by the Applicant. The letter enclosed all the material (other than material which had been supplied to the Department on the basis that it would not be disclosed further) on which the decision was made. By letter 23rd March, 1999 one Richard Fennessy the officer authorised by the Minister of the Asylum Division of the Respondent’s Department having considered the recommendations of the Appeals Authority decided to uphold the original decision and refused the appeal on the ground that the refugee status within the State was not such as to qualify for recognition in accordance with the definition of refugee contained in the 1951 UN Convention as amended and defined.

12. The Applicant’s Solicitor by letter dated 9th April, 1999 made representations as to why the Respondent should not make a Deportation Order. In short the Applicant made an application for leave to remain in the State on humanitarian grounds and this was supported by some testimonals as to his upright character, religious observance and education. The foregoing representations were made prior to the coming in to effect of Section 3 of the Immigration Act 1999.

13. By letter dated 20th January, 2000 signed by Eileen Doyle, Repatriation Unit, Immigration Division of the Respondent’s Department and addressed to the Applicant’s Solicitor it is stated as follows:-

“Dear Sirs,
I am directed by the Minister for Justice Equality and Law Reform to advise you that the Minister proposes to consider your client’s deportation under the power given to him by Section 3 of the Immigration Act 1999. You have already forwarded representations on behalf of your client prior to the implementation of the aforementioned legislation and the purpose of this letter is to give your client the opportunity to update the representations and to bring any new information, which may assist your client’s case, to the Minister’s attention.”

(emphasis added)
14. This letter was accepted in a letter from the Applicant’s Solicitor dated 4th February, 2000 which (inter alia) states:-

“Re: Our Client C. B. – Romanian National
Re: Humanitarian leave to remain in Ireland – further submissions .
Dear Ms. Doyle,
I referred your letter dated the 20th January, 2000. In accordance with Section 3 of the Immigration Act 1999 we wish to make further written submissions to the Minister for Justice, Equality and Law Reform stating reasons why our client should be allowed to remain in Ireland”

(emphasis added)
15. The letter concludes thus:-

“The Department of Justice have failed to act adequately with this man’s application for humanitarian leave to remain in Ireland. Indeed the medical report from Mr. B.’s G.P. would suggest that this man is in state of ill health. This has been exacerbated by the uncertainty of his situation in this country. I refer specifically to your letter dated 12th April, 1999.
I would ask the Minister for Justice, Equality and Law Reform to exercise his discretion and allow my client to remain in Ireland on humanitarian grounds.”

16. In or about this time the Illegal Immigrants (Trafficing) Bill 2000 was being considered by the legislature and on the passing of the Bill it was forwarded to the President for her signature. By Order given under her hand and seal on the 30th June, 2000 the President referred Section 5 and Section 10 of the Bill of the Supreme Court for a decision on the question as to whether the said sections or any provisions thereof were repugment to the Constitution or any provision thereof. The decision of the Supreme Court is contained in the Judgment of the Court delivered on the 28th day of August, 2000.

17. The Respondent made and signed a Deportation Order on the 28th September, 2000 requiring the Applicant within the period ending on the date specified in the notice served on the Applicant under subsection (3)(b)(ii) of Section 3, pursuant to subsection (9)(a) of Section 3 and to remain thereafter out of the State. The notice of the making of the Order is dated 16th October, 2000 and signed by one Wendy Murray, Repatriation Unit Immigration Division of the Respondent’s Department.

18. The text of the letter of 16th October, 2000 is identical to that in the case of P in particular as to the reasons of the Minister’s decision.

General Issues
1) It must be emphasised that these cases come before the Court by way of Judicial Review . The cases before the Court all seek, for a variety of reasons, the primary relief of certiorari to quash the Orders of the Minister. In the State (Abenglen Properties Ltd)-v-The Right Honourable The Lord Mayor Aldermen and Burgesses of Dublin [1982] ILRM 590 at 597, O’Higgins, C.J. expresed this view of certiorari:-

“Today it is the great remedy available to citizens, on application to the High Court, when anybody or Tribunal, (be it a Court or otherwise) having legal authority to effect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and the extention, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of . In addition it remains a discretionary remedy.”

(emphasis added)
2) The Constitutional status of non-nationals.
19. Why this arose at all as an issue in these proceedings I found difficult to understand as it was considered in detail by the Supreme Court on the Reference (p.27-32 (inclusive) of the unreported Judgment.

3) It has no function of the Court to enquire in to the detailed personal circumstances and to seek to make its own evaluation thereof – that is the concern of the Minister under the statutory provisions. The courts cannot and must usurp the Ministerial jurisdiction.
4) These cases take as their point of departure, the conclusion of a process under the Refugee Act 1966 (I note the positions expressed by the Supreme Court in Anisimova-v-Minister for Justice [1998] 1 ILRM 523 prior to the enactment of the Act of 1999). No proceedings have been taken against the various decisions made under the Refugee Act 1996. All Applicants proceeded on the basis of an election to proceed to claim relief by way of application to remain within the State on humanitarian grounds.

The Statutory Scheme
The relevant statutory provisions applicable to the cases are those set out in Section 3 of The Immigration Act 1999 and in particular the following subsections.
A “S.s.(1) Subject to the provisions of Section 5 (prohibition of refoulement) of the Refugee Act, 1996 and the subsequent provisions of this section, the Minister may by order (in this Act referred to as “a Deportation Order”) require any non national specified in the order to leave the State within such period as may be specified in the Order and to remain thereafter out of the State
S.s.(2) An Order under subsection (1) may be made in respect of –
(f) a person whose application has been refused by the Minister.”

20. There are other categories of persons in respect of whom deportation orders may be made but as all the Applicants come within category (f) it is unnecessary to consider such other categories. Much of the debate before the Court expressed by Counsel in their submissions related to the mandatory provisions binding on the Minister in the provisions of Section 3(a) and which reads as follows:-

“S.s.(3)(a) Subject to subsection 5, where the Minister proposes to make a deportation order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language he understands.”

(emphasis added )
21. In my Judgment it is not imperative that the Minister uses the expression “proposes to make” what is mandated by the subsection is that it is clear to the recipient what is that the Minister is about.

22. In the case of P the letter signed by Mick Quinn dated 5th July, 2000 (inter alia) states:-

“As the officer authorised by the Minister, I have considered the recommendations of the Appeals Authority and have decided to uphold the original decision and refuse your appeal.” [i.e that the application for refugee status within the State was manifestly unfounded]
As a result of this refusal, the Minister for Justice Equality and Law Reform proposes to make a deportation order in respect of you under the power given to him by Section 3 of the Immigration Act, 1999.”

(emphasis added)
23. I am unable to accept counsel’s submission that the letter failed to give a reason for the Minister’s proposal or that the letter fails to identify a reason for doing so. The word reasons (plural) embraces the singular reason. However where one of a number of reasons is given by the Minister he cannot afterwards rely on any other uncommunicated reasons to defend his compliance with the subsection.

24. In the case of L (argued very ably by Mr. Shipsey) excepting the fact that the relevant letter is dated 15th August, 2000 and bearing the signature of Linda Grealy the circumstances are identical. There is no statutory form to which the proposal of the Minister must comply, neither is there inhibition or impropriety of advancing as a reason that given in these cases.

25. In the case of B it is to be noted that when the process under the Refugee Act 1996 came to a conclusion with the letter from the Aslyum Division signed by Richard Fennessey who was the officer authorised by the Minister (see paragraph (3) of the letter) it is dated 29th March, 1999 . The Immigration Act 1999 became law on 7th July, 1999. Nevertheless the letter of 29th March, 1999 did clearly indicate to Mr. B that if he wished to make written representations as to why the Minister should not make a Deportation Order, he should do so within 14 days of the date of the letter. This invitation was taken up on Mr. B’s behalf by his Solicitor in a letter dated 9th April, 1999 and I note in particular that there is a medical certificate furnished to vouch that Mr. B “is suffering from diabetes”. The Act having become law a period of time of 6 months elapsed, and on 20th January, 2000 Eileen Doyle of the Respondent’s Department wrote as follows:-

“I am directed by the Minister for Justice, Equality and Law Reform to advise you that the Minister proposes to consider your client’s deportation under the power given to him by Section 3 of the Immigration Act 1999 . You have already forwarded representations on behalf of your client to the implementation of the aforementioned legislation and the purpose of this letter to give your client the opportunity to update the representations and to bring any new information, which assists your client’s case to the Minister’s attention.”

(emphasis added)

26. This is the linkage to the previous correspondence prior to the Act becoming law. The response to that letter is dated 4th February, 2000, which copper fastens the link. It is there in these terms:-

“I refer to your letter of 20th January, 2000. In accordance with Section 3 of the Immigration Act 1999 we wish to make further written submissions to the Minister for Justice, Equality and Law Reform stating reasons why our client should be allowed to remain in Ireland.”

(emphasis added)
27. This letter concludes with a reference to a letter dated 12th April, 1999 which is not with the papers.

28. The Immigration Act 1999 does not contain any transitional provisions (analogous to those contained in Section 28 of the Refugee Act 1996) nor is such contained in the several amendments to the Act of 1999 by the Illegal Immigrants (Trafficing) Act, 2000 nor are the categories of cases to which Section 3(3) applies extended by way of any amendment of Section 3(5) in particular. Accordingly notwithstanding the unity of the correspondence as a whole by internal reference I am satisfied a this stage that the mandatory provisions of Section 3(3)(a) was not complied with after the Act becoming law. According all steps that flow or follow upon same under Section 3(3)(b) no matter how carefully or fully complied with by the Minister are of any effect.

29. However in each of the cases listed argument was advanced by Counsel concerning the observance or non observance of the provisions of Section 3(3)(b) and in particular sub clause (ii) thereof.

B “S.s.(3)(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the sending of the notification, make representations in writing to the Minister and the Minister 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 persons understands.”

30. The Section also enjoins the Minister specifically in this way.

“S.3(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to “a number of specific matters listed from (a) to (k) inclusive “so far as they appear or are known to the Minister”

31. All three cases were decisions by the Minister refusing the Applicants leave to remain in the State upon humanitarian grounds and what is of importance is the first three paragraphs which are identical in each Letter of Notice, which notwithstanding its earlier citation in full in this Judgment, I insert herein for convenience of narrative which reads:-

“I am directed by the Minister for Justice, Equality and Law Reform to refer to your letter to your current position in the State and to inform you that the Minister has decided to make deportations orders in respect of you under Section 3 of the Immigration Act, 1999. A copy of the order is enclosed with this letter. In reaching this decision the Minister has satisfied himself that the provisions of Section 5 (prohibition of refoulement) of the Refugee Act, 1996 are complied with in your case. The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining of the asylum and immigration system outweigh such features of your case as might tend to support your being granted leave to remain in this State.”

(emphasis added)
32. The submissions made on behalf of the Applicants centred on this letter (but were not exclusively so confined) the contentions may be summarised as follows:-

1 The deportations orders were signed in blank. For this assertion there is no evidence.
2 The letter of notice which accompanied each deportation order should have been prepared and dispatched to the Applicants prior to the making of any such order. The logic of this arrangement seems flawed, one cannot give notice of a non existing order and Section 3(a) expressly deals with the Minister’s proposal to make a deportation order.
3 That even if the deportation order was made prior to the signing of the letter of notice, and if such sequence was correct, it is the deportation order itself that should contain:-
(i) the reasons for the Minister’s decision, and
(ii) the date of effect of the deportation
33. The response made by the Respondent is that Statutory Instrument (S.I. No 319 of 1999, the Immigration Act, 1999 Deportation) Regulations, 1999 made by the Minister under seal on 18th October, 1999 exercising the powers conferred on him by Section 7 of the Act of 1999 is the prescribed form for the purposes of Section 3(7) of the Act. The form of deportation order used in all three cases is as in accordance with the Statutory Instrument. The Respondent also submits that the documents are clearly to be read together and that they are expressly related by internal reference one to the other. In the course of the argument it was contended that the provisions that S.I No 319 of 1999 were repugnment to the Constitution. The legal process by which a specified range of decisions made under the Act of 1999 and other enactments and orders is to be challenged set out in Section 5 of the Illegal Immigrants (Trafficing) Act, 2000. The constitutionality of that section has been determined in the decision on the Article 26 reference (see p.51 et seq. of the unreported Judgment of the Supreme Court). What is of importance in the context of the case of B in particular (and many other cases) is that the provision of Section 5(3)(b) of the Illegal Immigrants (Trafficing) Act, 2000 which reads:-

“This subsection shall not apply to a determination of the High Court insofar as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”

34. While the restricted right of appeal contained in Section 5(3)(a) is part of an overall scheme of the Acts it clear that there is an unrestricted right of appeal in any case in which there is a constitutional issue raised as envisaged by the Section. B’s case specifically (see Notice of Motion paragraphs 4 and 5) contain specific constitutional challenges. While no such specific challenge appears in the papers in the case of P and L Counsel intimated to the Court that in the event of leave being granted to apply for Judicial Review application would be made to extend the grounds upon which the Court would be moved to include the constitutional challenge to the existing legal provisions: the right to which Mr. Bradley, with customary conciseness, challenged. I acknowledge that the 14 day limitation as set out in Section 5(2)(a) imposes a degree of pressure upon applicants and their advisors who in their anxiety to try and avoid having to seek an extension of the period within which application shall be made, present papers to the Court that may be less than complete to found the case they wish to present to the Court. Accordingly it may be from time to time be necessary to take this factor in to account. While not wishing to be in any way critical of any Applicant in this regard, the cases, not only those in this adjudication, but in the numerous other cases which have come to my attention, particularly on applications to extend time for the bringing of proceedings, reveal almost invariably a constitutional challenge having regard to the validity of a legal provision. By the insertion of such a ground for seeking leave the whole statutory scheme for the restricted appeal provisions is being sought to be circumvented. In my opinion an Applicant is entitled to challenge if so advised in an appropriate case the validity of any law having regard to the provisions of the Constitution but not as an integral part of an application for leave to apply for Judicial Review under the statutes.

4 It was a common theme of all Applicants that the letter of Notice was:-
(i) Inadequate in giving reason(s)
(ii) Not readily understandable
(iii) Devoid of reasons
(iv) Deficient in failing to explain public policy and the common good
(v) That to base a deportation order giving as a reason a consideration of the common good was a reflection on the good name and reputation of the Applicant. ( I reject this point which I finds lacks substance and appears to arise from a confusion between the expression common good as appearing in Section 3 subsection (2)(i) and Section 3(6)(j)
5 The use of the expression “maintaining the integrity of the asylum and immigration system” renders the Letter of Notice defective in the following respects:-
(a) it takes in to account an extraneous matter and
(b) the expression was unintelligible.
35. I approach a consideration of these matters on the basis of the decision of Keane J. (as he then was) in Golding & Ors-v-The Labour Court & Cahill May Roberts Ltd [1994] ELR 153 at 159 –

“The determination of the Labour Court need not, as a matter of law, take, any particular form: what is essential is that the manner in which it is expressed leaves no room for doubt as to the reasons which led to the decision, thus ensuring that neither the appellate not the supervisory jurisdiction of this Court is frustrated by an inadequate indication of reasons.”

Finlay C.J. in the State (P & F Sharpe Ltd)-v-Dublin County Council [1989] IR 701; [1989] ILRM 565 pointed out that :-

“In granting or refusing an application the Deciding Officer must act in a judicial manner – and this involves an obligation to ensure that an adequate note or record is made to permit a court upon review to be able to ascertain the material upon which the decision was reached .”
(emphasis added)
36. The topic was again dealt with by Finlay C.J. in O’Keeffe -v-An Bord Pleanla [1993] 1 IR 37 at 39 in this way:-

“What must be looked at is what an intelligent who person who had taken part in an appeal or had been appraised of the broad issues which had arisen in it would understand from this document, those conditions and those reasons.”

37. The Judgment in the Supreme Court Ní Éili-v-The Environment Protection Agency [unreported 30th July, 1999] Murphy. J, referred to an earlier Judgment of his in O’Donoghue-v-An Bord Pleanala [1991] ILRM 750 (at 757) as to the nature and extent of the reasons which administrative tribunals must give for their decisions, in these terms:-

“It has never been suggested that an administrative body is bound to provide a discursive Judgment as a result of its deliberations but on the other hand the need for providing the grounds of the decision as outlined by the Chief Justice (in the State (Creedon)-v-Criminal Injuries (compensation) Tribunal [1989] ILRM 104 could not be satisfied by recourse to an uninformative it technically correct formula.”

(emphasis added)
38. The Applicants in summary came to rely on the decision (quoted by Murphy. J in Ní Éili case of Evans, L.J. In MJT Securities Ltd-v- Secretary of State for the Environment [1989] JPL 138 (at p 144) thus

“The Inspector’s statutory obligation was to give reasons for his decision, and the courts can do no more than say that the reasons must be ‘proper, intelligible and adequate’,’as has been held. What degree of particularity is required must depend on the circumstances of each case.”

39. I am satisfied and find as a fact that the letter read in context:-

a) does contain reasons
b) is a sufficient statement of reasons
c) gives adequate reasons for the purposes of any constitutional requirement that can be stated to require same
d) meets the obligation of fairness, natural justice and constitutional justice in giving reasons, on an intra vires exercise of powers.
e) is not a mere formalistic mantra (to adopt counsel’s expression)
40. Having considered the Judgments in Orange Communications-v-The Director of Telecommunications Regulations and Anor (Supreme Court 18/5/200.; unreported and in particular the Judgment of Murphy J. (p 19-30) I am satisfied and find as a fact that the reasons given in the instant case are proper, intelligible and adequate. The case of Flannery-v-Halifax Estate Agencies [2000] 1 All E.R. 273 p 377/8 was relied upon as obligating of the giving of reasons in the context of litigation in cases of conflicting (expert) evidence in particular; in the instant case it is no function of the Court ‘to enter in to the issues’ that give rise to the decision. The case of Baker-v-Canada [1999] 2 R.C.S. 817 (p 844 section entitled “(4) The Provisions of Reasons” paragraphs 35 and 43 were of more interest than assistance on a topic that the jurisprudence of our courts deals with more than adequately.

While R-v-Secretary of State for the Home Department and Anor ex parte Canbolat [1998] 1 All ER 161 (at p.170) is of interest, it so primarily as indicating the degree of scrutiny that the Courts in the U.K. should adopt in relation to asylum issues under the specific statutory provisions in that jurisdiction.
41. The Judgment of Murphy. J in the State (Haverty)-v-An Bord Pleanla and Anor [1987] IR 485 (p.493) was advanced as assistance to me on the requirements of natural justice applicable to the cases before me. It is I hope clear from the narrative facts in this Judgment that, as the letter of Notice made clear the adjudicator considered the applicants submissions had regard to the requirements of Section 3(6) and carried out a balancing exercise and found that one “ outweighed” the other.

42. The Applicants submitted that there was an onus on the Respondent to define or explain the expressions “common good “ and “public policy” both referred to in the letter of Notice and in Section 3(b)(j) and (k) respectively. I do not consider the Respondent to be under any such obligation, he is obliged by statute to have regard to them with the other matters listed in Section 3(6) so far as appear or are known to him.

43. Much argument focused on the extent to which the Minister in stating that he he had regard to the factors set out in Section 3(6) in the letter of Notice failed to say what weight he attached to each particular heading for each particular Applicant and that there ought to have been some form of points or other system applicable to each heading so that each Applicant could know under which heading he fell short and by mathematical calculation or by what number of points or what percentage he fell short of success he might then perhaps make a further application or applications to the Minister or the Courts and have the Minister’s decision adjusted or altered. There is no such statutory requirement upon the Minister and the Court must not seek to legislate to obligate him so to do.

44. The concept of the common good, altogether for the necessity for the Minister to have regard to it, expressly under Section 3(6) is a proper basis for the Minister approaching the issue of the entitlement of non nationals to remain in the State. The Judgment of Gannon J. in Osheku-v-Ireland [1986] IR 733 was cited with approval in Tang-v-The Minister for Justice [1996] 2 ILRM 46, that decision was approved of in the Supreme Court decision of Laurentiu-v-The Minister for Justice, Equality and Law Reform and the Attorney General [1999] 4 IR 27 and in the decision of the Supreme Court in the Article 26 reference.

45. The Applicants’ counsel asserted difficulty in deriving any meaning in the expression “the Minister is satisfied that in the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system….” referred to in the letter of Notice. The asylum and immigration system is that set out in the Acts and Regulations. Keane J. (as he then was) in Laurentiu hereinbefore cited at page 93 of the report states:-

“The Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to exercised; what they cannot do, in my Judgment, is to assign their policy making role to a specified person or body, such as the Minister”

(emphasis added)
46. The letter of Notice in the expression in point merely but properly records that the Minister is satisfied that he is observing, as indeed he must, the material wholeness or completeness of the asylum and emigration systems which are contained in the Acts and Regulations.

47. In the case of B who married a fellow Romanian on 8th August, 1998 considerable stress was laid on the fact that both applications were not taken together, that one ought not to have been determined and the other left outstanding, that the married state albeit to a non national gave added status or weight to the application. It was a disclosed fact. The Minister’s letter of Notice in the third paragraph stating that the provisions of Section 3(b) were considered would include the provision in Section 3 subsection 6

“(c) the family and domestic circumstances of the person”

48. I prefer the detailed submissions of Miss Barrington on the Respondents behalf on this issue and the extent to which marriage attracted rights and the distinguishing features of Fajujonu-v-The Minister for Justice Ireland and the Attorney General [1990] 2 IR 151 where the married non nationals had children born as Irish citizens who had rights as such.

C What is the meaning to be given to the expression in Section 5(2)(b) that leave shall not be granted unless “The High Court is satisfied that there are substantial grounds ” for contending that the decision covers the determination recommendation refusal or orders invalid or ought to be quashed.”
49. This matter was considered by the Supreme Court at p.44 et seq of the unreported Judgment on the Article 26 References whose decision made clear that the interpretation placed on the word substantial grounds by Carroll J. in the case of McNamara-v-An Bord Pleanala [1995] 2 ILRM 125 was appropriate. The case of O’Dowd-v-North Western Health Board [1983] ILRM 186 is referred to in the Judgment of Carroll, J but only in the context of a quotation from the Judgment of Egan. J in the Supreme Court decision of Scott-v-An Bord Pleanala , the High Court 1994 No 274 RJ (Costello J.) 27th July, 1994; [1995] 1 ILR 424. It is not possible to say whether the O’Dowd case was opened in full to Carroll. J. It is clear from the Judgment of Egan. J in the Scott case that he did not find the O’Dowd case to be of any assistance. While it is true that in the case of O’Dowd, Scott and the present cases each deal with different Acts of the Oireachtas both the case of O’Dowd and Scott are Supreme Court decisions.

50. There is no official report to show that the O’Dowd case was opened to the Supreme Court the case of the Article 26 reference. In the course of his Judgment in the O’Dowd case Griffin. J considered and adopted what was said by Denning L.J. and Parker L.J. in Richardson-v-London County Council [1957] 1 WLR 751 to the effect that:-

“(i) ‘There must be more than reasonable grounds there must be substantial grounds;’
(ii) substantial grounds ‘is something short of certainty , but considerably more than bears suspicion.”

51. In my Judgment in seeking to properly apply the law as I understand it to be the test is substance and reality, rather than technicalities and ingenious argument. In RGDATA Limited-v-An Bord Pleanala and Anor (unreported 30th April, 1996) Barron. J observed :-

“Having regard to the words of the statute, it is necessary to determine whether or not there is a submission of substance which it is reasonable to permit to go to a full hearing. In determining this question the Court should not be concerned with trying to determine what the eventual result is likely to be; see Judgment of Carroll. J in McNamara-v-An Bord Pleanala [1995] 2 ILRM 125 at page 130. In practice this is difficult since the submissions of the parties tend to deal with what the result should be.”

52. In the cases with which this Judgment is concerned time was liberally given to counsel to elaborate on their cases in full (not because that in anyway betokened an acceptance by me as sought to be construed by Mr. McDonagh that it proved that there were substantial grounds) but, so that if I considered my decision warranted a certification of a point of law of exceptional public importance and that it would be desirable in the public interests that an appeal should be taken to the Supreme Court there would be a reasonably wide and proper basis for so doing.

D What is the correct standard proof under Section 5(b) of the Act of 2000?
53. Paragraph of the subsection refers to the High Court being “satisfied”. In O’Dowd’s case it ws held that the use of the word satisfied in the Mental Treatment Act 1945 indicated that the Oireachtas had in mind a higher standard of proof than that which a plaintiff would ordinarily would be required to discharge in a civil case. The Supreme Court in G-v-DPP [1994] 1 IR 374 set forth the burden of proof on an applicant to obtain liberty to apply for Judicial Review in ordinary course under The Rules of the Superior Courts O.84 r.20. Such applications are ex parte. All that is required of an applicant is that he establish a statable case. I am not satisfied that such a low standard is appropriate on an inter partes hearing and I consider it as appropriate and proper and propose to adopt the views of Glidewell L. J. In Mass Energy Limited-v-Birmingham City Council [1994] Env L.R. 298 (at p.307-8) wherein it is stated:-

“First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us….Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail – indeed in really quite minute detail in some instances – in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good as position as would be the court at the substantive hearing to construe the various documents.

For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be – and the approach I intend to adopt will be – that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong; that is to say, is likely to succeed.”

54. That view was approved by Keene J. in R.-v-Cotswold District Council Ex Parte Barrington Parish Council 75 P. and C.R. 515 at p.530 where he said:-

“Before dealing with those issues, it is necessary to consider the proper test to be applied to the substantive merits on an application for leave in case such as this. Reference has been made by the respondents to the Court of Appeal decision in Mass Energy Limited-v-Birmingham City Council . There Glidewell L.J. stated that, where there has been detailed evidence and substantial argument on an inter partes hearing, leave should not be granted merely because an arguable point has been shown, but only if the applicant shows a strong case which was likely to succeed: see page 308 as indicated in ex p. Frost that approach seems in principle to be as applicable at a first instance hearing of a leave application as in renewed leave proceedings before the Court of Appeal….For my part, I would prefer to put it on the basis that where the Court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits that is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to given leave.”

55. Kelly J. who considered these cases in the case of Gorman and Others-v-The Minister for the Environment and Others [unreported 7th December, 2000] stated as follows:-

“That approach appears to me to make a great deal of sense and to make for a far more economical use of court time than the application of the substantially lower standard arguable case“ with which he was dealing .

56. I agree with the expression of view of Kelly J. and it seems to me appropriate in the cases under the Acts of 1999 and 2000.

Conclusion
57. I am satisfied in the evidence before me:-

1 The Plaintiffs have not discharged the burden of proof that any of the decisions impugned are unreasonable.
2 The Respondent did not act in ultra vires .
3 There is no error on the face of the records such as will entitle the Respondents to the relief of certiorari.
4 Solely on the ground that in the case of B there was a failure to expressly give reasons under Section 3(a) after the coming in to effect of the Act of 1999 which was a pre requisite to proceedings to the determination under Section 3(b), that B is entitled to an Order of Certiorari and no other and for no other than aforesaid.
58. Accordingly I refuse the leave sought by P. And L.

F.A.F. (Nigeria) v The Minister for Justice and Equality & ors

(Approved) [2019] IEHC 263 (12 April 2019)

Page 1 ⇓THE HIGH COURT[2019] IEHC 263JUDICIAL REVIEW[2018 No. 950 J.R.]BETWEENF.A.F. (NIGERIA)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELANDRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of April, 20191. The applicant was born in 1955 in Nigeria and is now 63. She has four children. One child lives in Ireland and is now an Irish citizen,as are that child’s husband and children. In her original asylum application, the applicant claimed that the whereabouts of her otherthree children was unknown, though by the stage of the tribunal hearing she said they were living with her mother and sister inNigeria (see s. 3 of the tribunal decision), which suggests that she may not have been altogether forthcoming at all times about herknowledge of where they are. She currently lives with her Irish citizen daughter and the latter’s family in the State.2. On 4th December, 2008, the applicant arrived in the State and applied for asylum, which was rejected by the Refugee ApplicationsCommissioner on 22nd December, 2008. That decision was appealed to the Refugee Appeals Tribunal, which rejected the appeal on3rd April, 2009, raising not only an internal relocation issue but also some questions over the applicant’s credibility.3. On 29th May, 2009, the Minister for Justice and Equality proposed making a deportation order against the applicant. On 19th June,2009, in response to that proposal, the applicant sought subsidiary protection and leave to remain.4. On 20th July, 2009, the subsidiary protection application was refused and a deportation order was made on 21st July, 2009. Theapplicant was required to present for deportation on 10th August, 2009. None of the adverse decisions were challenged at that point,or at any point, and the applicant failed to present as required. Accordingly she was classed as an evader.5. The next legally significant thing that happened in this case was that the applicant’s solicitors applied for revocation of thedeportation order under s. 3(11) of the Immigration Act 1999 on 25th October, 2016. The application, which Ms. Grace Mulherin B.L.for the respondents describes as “legalistic” and which bears only limited resemblance to the submissions made to me, breaks downinto three headings:(i). An allegation of a flawed original assessment process that sought to revisit previous unchallenged decisions. Seekingleave to remain on this basis does not amount to a correct procedure. The Minister at the s. 3(11) stage is notundertaking a parallel judicial review-type examination of previous unchallenged decisions.(ii). Family life was relied on, but on a much more legalistic basis than that actually pleaded or argued. The submissionsought to make an analogy with EU treaty rights.(iii). Reliance was placed on the applicant’s length of residence in the State and reference was made obliquely to theMcMahon report and consequent permissions given to certain applicants who had been resident for a five-year period.The McMahon report of course does not apply to this applicant due to her evasion and, while pleaded, that ground wasnot pursued.6. A further submission was made on 13th February, 2017 in connection with the McMahon report point and on 17th February, 2017evidence was provided of the applicant’s son-in-law being in paid employment, again to advance the EUTR analogy point. Ms.Mulherin’s comment is a fair one when she says at para. C4 of the written legal submissions that the applicant’s submissions to theMinister can be said to have only given “the barest of details regarding her family in Ireland”.7. Also submitted to the Minister was a letter dated 23rd July, 2018 from the applicant personally pleading for mercy on an admisericordiam basis. The applicant’s file was examined on 24th September, 2018 and a proposal made to refuse the application unders. 3(11). The applicant was so notified on 12th October, 2018.8. The present proceedings were filed on 14th November, 2018, possibly very slightly out of time, the primary relief being an order ofcertiorari quashing the decision to affirm the deportation order, which was said to have been notified to the applicant on or about15th October, 2018. I granted leave on 19th November, 2018. The applicant was evading at that point. I am informed by Mr. GarryO’Halloran B.L., who appears for her, that she attended at the GNIB on 10th December, 2018 but was not seen for some hours due toa queue and left without being seen, and she then presented again in January, 2019. The respondent’s statement of opposition wasfiled on 14th February, 2019. I have now received helpful written and oral submissions from Mr. O’Halloran and Ms. Mulherin, and I amgrateful to them both.Section 3(11) context9. The context of revisiting previous decisions which have either been unchallenged or unsuccessfully challenged necessarily involvesa more restrictive procedure and a more restricted scope for judicial review. It is not open to an applicant to succeed in a challengeto a reiterated decision on grounds that applied to an unchallenged or unsuccessfully challenged original decision. Ms. Mulherin’sthoroughly researched written legal submission sets out the extensive body of caselaw that affirms this principle, most notably theSupreme Court decision in P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R. 164 per MacMenamin J. and CharletonJ. and the Court of Appeal decisions in R.B. v. Minister for Justice and Equality [2017] IECA 26 (Unreported, Court of Appeal, 10thFebruary, 2017) per Peart J. and C.I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385 per Finlay Geoghegan J.In addition to those headline decisions there are a number of other decisions of the High Court to the same effect: see K.R.A. v.Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May, 2016), O.O.A. v. Minister forJustice and Equality [2016] IEHC 468 [2016] 7 JIC 2924 (Unreported, High Court, 20th July, 2016), Mun v. Minister for Justice andPage 2 ⇓Equality [2018] IEHC 369 [2018] 5 JIC 1011 (Unreported, High Court, 10th May, 2018), H.A. (Chad) v. Minister for Justice and Equality[2019] IEHC 57 [2019] 1 JIC 2909 (Unreported, High Court, 29th January, 2019), J.A. (Pakistan) v. Minister for Justice and Equality[2018] IEHC 343 [2018] 5 JIC 0102 (Unreported, High Court, 1st May, 2018), O.A.B. (Nigeria) v. Minister for Justice and Equality[2018] IEHC 142 (Unreported, High Court, 27th February, 2018), C.O. (Nigeria) v. Minister for Justice and Equality [2017] IEHC 725[2017] 11 JIC 2406 (Unreported, High Court, 24th November, 2017), J.M.N. v. Refugee Appeals Tribunal [2017] IEHC 115 [2017] 2 JIC2710 (Unreported, High Court, 27th February, 2017), C.M. v. Minister for Justice and Equality [2018] IEHC 217 [2018] 4 JIC 2501(Unreported, High Court, 25th April, 2018), A.B. (Albania) v. Minister for Justice and Equality [2017] IEHC 814 [2017] 12 JIC 2113(Unreported, High Court, 21st December, 2017), Onyemaechi v. Minister for Justice and Equality [2017] IEHC 682 [2017] 10 JIC 1705(Unreported, High Court, 17th October, 2017), B.S.S. v. Minister for Justice and Equality [2017] IEHC 463 (Unreported, O’Regan J.,17th July, 2017), Nagra v. Minister for Justice and Equality [2018] IEHC 398 [2018] 6 JIC 0507 (Unreported, High Court, 5th June,2018), V.D. (Zimbabwe) v. Minister for Justice and Equality [2018] IEHC 56 (Unreported, High Court, 30th January, 2018), T.A.(Nigeria) v. Minister for Justice and Equality [2018] IEHC 98 [2018] 1 JIC 1607 (Unreported, High Court, 16th January, 2018).10. I turn now to the grounds as pleaded, noting that grounds 3, 5 and 6 have been withdrawn on behalf of the applicant.Ground 1 – alleged disproportionality11. Ground 1 alleges that “the decision of the Minister to affirm the deportation order is disproportionate due to the failure to strikea fair balance when assessing the relative weight of the competing factors, and including the constitutional rights of the Irish citizenfamily members of the applicant”.12. Insofar as this ground pleads the rights of persons who are not parties to the proceedings, that procedure is not open to theapplicant who cannot rely a jus tertii. The decision is not disproportionate in any event. It does not strike a favourable balance fromthe applicant’s point of view but that is lawful and not the same as striking a disproportionate balance. The applicant’s family life builtup at a time when her status was either precarious, unsettled or unlawful. Almost ten years of it built up during a period of activeevasion of the system. It would be disproportionate interference in the functions and powers of a Minister for Justice and Equality forthe judicial branch of government to condemn a decision to enforce an unchallenged order made against such an applicant. Asomewhat legalistic argument was made that the decision was flawed because it relies on the judgment of the Strasbourg court inEzzoudhi v. France (Application No. 47160/99, European Court of Human Rights, 13th February, 2001) which states that relationshipsbetween adult relatives do not necessarily attract the protection of art. 8 without dependency involving more than normal ties.However, the Minister can hardly be criticised for failing to consider the ECHR as applied by the European Convention on Human RightsAct 2003 where he has relied specifically on a judgment of the Strasbourg court.13. Mr. O’Halloran also complains that the “original deportation consideration” (para. 19 of applicant’s written legal submissions)quoted from Kugathas v. Secretary of State for the Home Department [2003] EWCA Civ 31, which was glossed somewhat at a laterdate in P.T. (Sri Lanka) v. Entry Clearance Officer, Chennai [2016] EWCA Civ 612. Of course this is a classic collateral attack. It isnot open to an applicant to complain about an “original deportation consideration” which was unchallenged simply because he or shegets the idea of making a revocation application.14. A second argument is made that the applicants sent an ad misericordiam letter stating “I would like you to have mercy on meSir”, a letter which is noted and indeed quoted verbatim in the impugned decision. Mr. O’Halloran says in written legal submissions that“the Minister simply failed to consider exercise of his discretion” as referred to in D.E. v. Minister for Justice and Equality [2018] IESC 16[2018] 2 I.L.R.M. 324 per O’Donnell J. (para. 11). He even at one point suggested the Minister did not have regard to the Preambleto the Constitution, but of course a decision of this nature does not have to quote any particular legislation or constitutionalprovisions, still less caselaw, unless perhaps a specific submission is made that deportation is unlawful by reference to such a specificprovision which is not the case here.15. First of all, the complaint that the Minister failed to consider the exercise of his discretion is not pleaded, so the applicant cannotsucceed under that heading. But in any event, the complaint is simply a misreading of the decision. Sure, the Minister does not saywhile the applicant has not shown legal entitlement to have the decision revoked, I am now going to go on to consider whether as apurely discretionary matter it should be revoked. But that is inherent in the whole nature of the process. An applicant is entitled tomake ad misericordiam submissions as this applicant did, and the decision states that the submissions were considered. It is up to anapplicant to prove that this was not done and that onus has not been discharged here (see G.K. v. Minister for Justice, Equality andLaw Reform [2002] 2 I.R. 418 [2002] 1 ILRM 401 per Hardiman J.). There is no obligation on the Minister to use any particular formof words.Ground 2 – alleged disproportionate interference with private and family life16. Ground 2 contends that “the affirmation decision is disproportionate interference with the private and family lives of theapplicant, her daughter, son-in-law and grandchildren”.17. Again, the applicant cannot plead or rely on the rights of third parties who are not applicants. It is hard to discern any particularpoint under this heading that is not encompassed in ground 1, but in any event no disproportionate interference with the rights ofeither the applicant or, for what it’s worth, others, has been demonstrated for the reasons stated above.Ground 4 – alleged failure to properly consider interference with family life18. Ground 4 contends that “the Minister erred in law in considering interference with family life as simply a matter of ‘normal familylife’ and also in failing to consider the question of family life by reference to Nigerian cultural norms”.19. The ground as pleaded is fairly obscure but is not a basis for holding that the Minister’s decision is unlawful. The issue of whetherthe ties involved go beyond normal family life was one the Minister was entitled to consider, as referred to in the Strasbourg judgmentquoted in the decision and referred to above. Any questions of Nigerian cultural norms were not made to the Minister in submissionsso cannot be a ground for judicial review. That sort of gas-lighting of a decision-maker by challenging a decision in the High Court ona point that was not put before the decision-maker in the first place has been repeatedly condemned (see e.g. Mun v. Minister forJustice and Equality [2018] IEHC 369 [2018] 5 JIC 1011 (Unreported, High Court, 10th May, 2018) para. 17, B.D. (Bhutan and Nepal)v. Minister for Justice and Equality [2018] IEHC 461 [2018] 7 JIC 1709 (Unreported, High Court, 17th July, 2018) para. 10, T.M. v.Refugee Appeals Tribunal [2016] IEHC 469 [2016] 7 JIC 2925 (Unreported, High Court, 29th July, 2016), Jahangir v. Minister forJustice [2018] IEHC 37 [2018] 2 JIC 0102 (Unreported, High Court, 1st February, 2018) at para. 7, J.M.N. (a minor) v. RefugeeAppeals Tribunal [2017] IEHC 115 [2017] 2 JIC 2710 (Unreported, High Court, 27th February, 2017), Igbosonu v. Minister for Justiceand Equality (No. 2) [2017] IEHC 748 [2017] 12 JIC 0503 (Unreported, High Court, 5th December, 2017), H.E. (Egypt) v. Minister forJustice and Equality (No. 3) [2017] IEHC 810 [2017] 12 JIC 1304 (Unreported, High Court, 13th December, 2017)). In any event, anysuch points were there all along and did not come into existence because the applicant decided to make a s. 3(11) applicationchallenging the upholding of the original deportation order and then emerge from hiding. Differences in the applicant’s situation thenPage 3 ⇓and now are really a matter of degree due to the passing of time but the point itself was there all along. Even if it could be regardedas a new point it is not one of substance.Discretion20. Although classically discretion arises in an “applying the proviso” sense, that is if a purely legalistic flaw is uncovered or one thatwould not have made a difference to the outcome, that is not the sole basis for discretion. It has broader application in equitable anddiscretionary remedies, such as judicial review. It also arises in a context where a person intentionally and unlawfully frustrates andundermines a particular process and then reserves the right to himself or herself to challenge the outcome of that process ifunfavourable. As put by Lord Carnwath in Youssef v. Secretary of State for the Home Department [2016] UKSC 3 (para. 61):“Judicial review is a discretionary remedy. The court is not required to ignore the appellant’s own conduct, or the extent to which heis the author of his own misfortunes.”21. This applies here. This applicant successfully and unlawfully frustrated the enforcement of the deportation order for an almostten-year period and I do not think it would be appropriate to give her the benefit of a discretionary remedy in the context of seekingto challenge the outcome of the deportation process. Thus I would have refused the relief on discretionary grounds even if,counterfactually, she had established any legal flaw in the process.Order22. In a way it is shame from the applicant’s point of view that she is going to be deported because had she played by the rules,continued to report and sought judicial review of the original deportation order she might well have been given permission under theinformal process triggered by the McMahon report. Instead she cocked a snook at the system and went underground, therebydisqualifying herself from the benefit of McMahon. Responsibility for the resulting situation rests firmly with her. Perhaps that will be acautionary tale for others.23. The order therefore will be as follows:(i). I note that the time objection has not been pressed by the respondents.(ii). The proceedings are dismissed.(iii). The respondents are released from their undertaking not to deport the applicant.

Lupascu -v- Minister for Justice Equality & Law Reform & Ors Judgment

[2004] IEHC 400 (21 December 2004)

Judgment Title: Lupascu -v- Minister for Justice Equality & Law Reform & Ors

Neutral Citation: [2004] IEHC 400 JR

High Court Record Number: 2003 756 JR

Date of Delivery: 21 December 2004

Court: High Court

Composition of Court: Peart J.

Judgment by: Peart J.

Status of Judgment: Approved

 

 

THE HIGH Court [2004] IEHC 400

Record Number: 2003 No. 756 JR
Between:
Vasile Lupascu
Applicant
And
Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Respondents

 

Judgment of Mr Justice Michael Peart delivered the 21st day of December 2004:

This is an application under s.5 of the Illegal Immigrants (Trafficking) Act, 2000 (“the 2000 Act”) for leave to commence judicial review proceedings for an order of certiorari quashing firstly the deportation order dated 7th August 2003 but notified and deemed to have been received by the applicant on or about the 13th October 2003; and secondly the notification itself pursuant to s. 3(3)(b)(ii) of that Act, which is dated the 9th October 2003.

For all practical purposes the relevant date is the 13th October 2003. No extension of time is required, the application for the present relief having been filed on the 21″ October 2003.

The applicant seeks also reliefs under Order 84 of the Rules of the Superior Courts which I will refer to Sabiya type relief.

The history of this case has been long, extending as it does back to the time of the applicant’s arrival in this State more than five years ago, on the 12th February 1999. The time which has passed, for various reasons which I will outline, is relevant to
why the applicant seeks leave to apply for the reliefs set forth in his Statement of Grounds, and it is part of his case that during the time which has passed, including between the 14th December 2001 when he was notified of the Minister’s proposal to
make a deportation order, and the 13th October 2003, the deemed date of that order, his circumstances changed in a number of material and relevant ways, including ways known to the Minister and that the applicant was not afforded any opportunity to make representations to the Minister in relation to these changed circumstances before the Deportation order was made.

The Grounds relied upon are, inter alia, that by virtue of the lapse of time the Minister has acquiesced in the applicant’s presence in the State; that he ought to have been afforded a further opportunity to make updated submissions; that these changed circumstances include having integrated into the State to a very considerable extent during that period of delay, including having entered into a mortgage for the purchase of buying property; that his wife was given a work permit by the Minister for Enterprise, Trade And employment and that certain rights flow to the applicant by virtue of this fact; and that the Minister has failed to give adequate reasons for his decision and has therefore acted unreasonably, and in breach of fair procedures.

The application for leave is grounded principally on an affidavit sworn by the applicant on the 21st October 2003, which I shall come to shortly.

The affidavits:

The applicant says that he arrived here on the 12th February 1999 whereupon he immediately made an asylum application which the RAC decided to transfer to the United Kingdom. A refusal of an appeal against that decision issued on the 10th August 1999. The Minister made a deportation order on the 10th November 1999, whereupon Judicial Review proceedings, as well as Habeas Corpus proceedings were instituted following his arrest on foot of the Deportation Order. Leave was granted to seek Judicial Review, following which the proceedings were compromised. The applicant was permitted to re-enter the asylum process, and was interviewed on the 11th July 2000.

He received an adverse decision by letter dated 31 st July 2000. He appealed against that decision, and following an oral hearing his appeal was rejected by Decision dated 2nd July 2001, communicated to the applicant by letter dated 7th August 2001.

This was followed by a letter dated 14th September 2001 from the Minister wherein the Minister indicated that he intended to make a Deportation Order and invited submissions pursuant to s.3 of the Immigration Act, 1999. Written submissions were made by solicitors acting on the applicant’s behalf by letter dated 2nd October 2001.

The applicant states that he heard nothing further until he received a letter dated 9th October 2003 (over 2 years later) which enclosed a Deportation Order, and he says that the deportation order “was triggered by my request to the Tanaiste and Minister for Enterprise, Trade and Employment, Ms. Mary Harney T. D. who is my local T. D. to assist me in obtaining identification from the first named Respondent for the purpose of applying for a driving licence “.

I should just add at this point that in his replying affidavit Mr Gleeson disputes these matters, and avers that in fact the applicant attended at the Department’s offices on the 25th March 2003 “in order to renew his identity card and request the return of such original documents as may have been on his file”. Mr Gleeson exhibits a letter dated the 26th March 2003 from the Department and addressed to “To Whom It May Concern” in which it is stated (a) that his asylum application has been refused, (b) consideration is being given as to whether to grant the leave to remain application or to return him to his country of origin, and (c) the Department is not in a position to issue the applicant with an identification document. Mr Gleeson says that the \Deportation Order was not “triggered” in the manner stated by the applicant.

The applicant then goes on to state that in the two years from the date of the Minister’s proposal to deport he has put down what he describes as “substantial roots in the State” and that in particular he has taken out a mortgage and bought property in the State where he now resides. He says also that his wife has been granted a work permit which, at the date of his affidavit certainly, is valid and in force.

On behalf of the respondents there is an affidavit sworn in reply by Joseph Gleeson sworn on the 19th January 2004. Briefly stated, Mr Gleeson maintains that the applicant has at all times known that he had no right to remain in the State; that he has been in touch with the authorities and had received correspondence from them during the period concerned; that he has known at all times that the Minister was proposing to make a deportation order; that no legitimate expectation that he would be allowed to remain can have arisen, and that the Minister has in no way acquiesced; that his wife’s work permit in no way affects the status of the applicant here; and that the reasons for the Minister’s decision is clearly set forth in the letter of notification sent (i.e. he is a failed asylum seeker).

I have already mentioned what Mr Gleeson says about some of the applicant’s averments about having heard nothing from the Minister during the relevant period of delay between the proposal to make the deportation order and the deportation order itself.

Submissions:

Counsel has stated that the applicant informed the Department that he was going to
apply for a mortgage, and also that the applicant paid €7000 in respect of stamp duty.
However none of this is contained in any affidavit before this Court. Counsel also
referred to the fact that in document which is the “Examination of file under Section 3 of the Immigration Act, 1999” dated 6th May 2003, the Clerical Officer in the
Repatriation Unit of the Minister’s Department has stated at page 2 thereof that “Mr Lupascu’s connection to the State lies in his application for asylum”. He goes on to submit that in fact it is clear from this very document that this is incorrect in as much as there is reference in the previous paragraph of the document that the officer had investigated the matter and states a number of family details such as that he is married with one child, that his wife entered the State and obtained a work permit, that her visa was renewed, that their son was granted a visitor’s visa valid until I 9th September 2002, that neither his wife nor his son applied for asylum, that his wife claimed child benefit, and so on.

But it is submitted that during the following period and before the decision to refuse leave to remain was made, the applicant’s circumstances changed, and his links here deepened, and it is submitted that the applicant ought to have been afforded an opportunity to update his circumstances between May 2001 and October 2003.

It is submitted that when one looks at the decision in October 2001 and compares it to the decision in October 2003, it is clear that the Minister took matters into account on which the applicant was afforded no opportunity to be heard. In this regard I have been referred to a decision of mine contained in an unreported judgment in Botusha v. Minister for Justice Equality and Law Reform. That was a case in which the Minister was made aware that a medical report was being obtained and would be furnished, but the Minister went ahead and made the order without waiting for the medical report to arrive. In those circumstances I decided that fair procedures required that he ought to have awaited the medical report. The facts are different to the present case, but the applicant points to the importance which I attached to the requirement that procedures be fair.

Counsel points to the fact that nowhere has the Minister taken into account the mortgage which the applicant took out in connection with the property purchased in the period concerned, and that this is a connection which is above and beyond the connection referred to as existing solely on the basis of his asylum application. It is also submitted that the decision to make the Deportation Order so suddenly was triggered by the approach made in connection with the seeking of an identity document in March 2003, and that thereafter there was what was described as a rush to get the applicant out of the country. That is a breach of fair procedures in the submission of the applicant.

Counsel on behalf of the respondents has submitted that the applicant was afforded the opportunity to make submissions and he did so with the assistance of experienced solicitors, and that he could at any time between that time and the eventual decision have made any further representations he may have wished, in order to take account of any matters which he considered constituted changed circumstances or which would be relevant to the Minister’s consideration of his application for leave to remain, but that for whatever reason, the applicant chose not to communicate with the
Minister in that regard, although he did have communication in March 2003 when he sought identity documentation, which was refused for the reasons stated. It is pointed out that in the said letter of refusal dated 26th March 2003 which was handed to the
applicant it is stated that his application for leave to remain is under consideration, and that this was the perfect opportunity for the applicant to make some updated representations to be taken into account.

The respondent submits that the Minister’s duty is to consider whatever application is made for leave to remain, and that in this case he did so. It is submitted that the onus is on the applicant to bring to the Minister’s attention any matters relevant to that consideration, and that in the absence of any further submission being made, the Minister is entitled to proceed on the basis of whatever material has been placed before him. It is also pointed out that the applicant was not taken by surprise about a decision on his leave to remain application being made, since it is specifically referred to in the letter dated 26th March 2003 handed to the applicant.

Counsel has submitted that the applicant cannot regard himself simply as an inactive or passive participant in the asylum/immigration process, and that it is up to him to appraise the Minister of matters relevant to the latter’s consideration of his application.

I have also been referred to my judgment in Sofroni v. The Minister for Justice, Equality and Law Reform, unreported, 9th July 2004. In that judgment I referred to the status in the State of an asylum seeker during the period of time spent here during the asylum process, and that nothing which arose during that time by way of delay could create any legitimate expectation that the applicant’s status as an asylum seeker would transform into something else, such as a person who would be allowed to remain. In the present case it is submitted that even the delay which occurred cannot alter the applicant’s status or render it more likely or confer any legitimate expectation that his application for leave to remain would be granted. On the other hand Counsel for the applicant has stated that the applicant is not relying on a legitimate expectation, but rather on the delay which has occurred between the making of the proposal to deport and the Deportation order itself, as well as the fact that the applicant was denied an opportunity to make updated submissions or
representations prior to the Minister’s eventual decision, and seeks support from my judgment in Botusha to which I have referred earlier, rather than Sofroni. Particular reliance is placed on Grounds 1,2, and 3 in the Statement of Grounds, i.e. the delay, the lack of a further opportunity to make updated submissions, and the change in the applicant’s circumstances since the original proposal to deport some two years previously.

Conclusion:

This is firstly an application for leave under s.5 of the 2000 Act, and the task of the applicant in such a case is less arduous than if this were the hearing of the substantive
application after leave is granted. Nevertheless, it is beyond doubt that the applicant has to establish substantial grounds, that is grounds which are of substance, arguable, weighty, and not trivial or tenuous. The fact that this is an application required to be made on notice means that an applicant’s task is more onerous than is the task of an applicant for leave under Order 84 of the Rules of the Superior Courts, where such an application is made on an ex parte basis. Therefore the Court must, in addition to hearing what is urged by the applicant, have some regard to the arguments and submissions made by the respondents, and yet at the same time do so in a way that is not to the extent or degree that will be done at a substantive hearing. If the level of the bar over which the applicant for leave must pass is at the same height than at the substantive hearing, there seems no purpose served by the requirement for an application for leave on notice, other than to add an unnecessary layer of cost and delay in the process. Where arguments are fulsomely made by Counsel on each side, the task of confining consideration of the application for leave to the limited way required can be difficult.

However, at this stage of the process, there is no doubt that applicant must put forward substantial grounds for contending that he is entitled to apply for relief. The first ground put forward in his Statement of Grounds is that the Minister has been guilty of excessive delay between 14th December 2001 and the 13th October 2003. The first matter to remark is that there is no prescribed time within which the Minister must make the Deportation Order following the notification of his proposal to do so. I do not consider that the applicant has made out substantial grounds, to the necessary
extent, that by this delay the Minister could be deemed to have acquiesced to the presence of the applicant here, and this is particularly so in the light of the Minister’s letter dated 26th March 2003 which makes the position of the applicant clear at that point in time.

It is claimed also that the Minister “ought to have afforded the applicant a further opportunity to make updated submissions “. In this regard it is clear that any updated submissions which the applicant wished to make could have been made at any time prior to 14th December 2003, and if he had done so, then almost certainly the Minister would have been obliged to have considered them, and would have done so. That follows in my view from what I stated in Botusha, where the Minister was made aware that a medical opinion was being obtained, but he made the Deportation Order without allowing a reasonable time to receive the promised report. It is another matter completely to say that in all cases where there has been a certain amount of delay, the Minister must communicate with such an applicant and invite a further submission. In this particular case, the applicant himself who is possessed of all relevant knowledge about his own circumstances was aware as of the 26th March 2003 that his application for leave to remain was under consideration and that the Department had stated that it was not in a position at that time to issue him with an identification document. That was a very clear signal which ought to have prompted the applicant to update his situation if he so wished.

I do not consider it to be arguable that the Minister is in breach of any obligation, statutory or otherwise as far as fair procedure is concerned, to communicate with the applicant and invite a further submission. The applicant is not simply an inactive or passive participant in this process. He is obliged to act in his own interests, and in this case it is a fact that he sat back and waited for things to happen and he cannot now complain in that regard.

In addition, however, this Court has been provided with no evidence as to the mortgage or house purchase which has been made. That is another onus which remains undischarged in the substantiating of this argument even for the purposes of this leave application. This is clearly relevant to the third ground argued, namely that the applicant’s circumstances have altered as a result of the delay complained of. In
this case the Court has simply a bald assertion about the mortgage. It would not be difficult to exhibit relevant documentation in this regard, and the applicant is under an obligation of candour in an application such as this.

It is also not in my view arguable to the required degree in an application of this nature that by granting the applicant’s wife a work permit, the Minister was thereafter not entitled to make a Deportation Order in this case once his application for asylum had failed. The Minister was entitled to follow, as he did, the statutory procedure.

Ground 5 has not been made out in any fashion whatsoever.

The applicant has not put forward arguments in relation to Ground 6, and in relation to ground 7 1 am not satisfied that any substantial ground has been made out for leave regarding the Minister having relied on materials or documents not made available to the applicant. The same applies in relation to Ground 8 regarding adequate reasons for his decision. The reason for the decision is made clear, and he has stated that he has had regard to the representations made on his behalf. The other grounds related to this argument similarly do not cross the required threshold of arguability.

I therefore refuse the reliefs sought except in relation to the ground which has been allowed in a number of cases regarding the fact that no destination of deportation is contained in the Deportation Order.

I will allow leave in respect of paragraph C4 on the Ground set out at paragraph (e) 9.Lupascu -v- Minister for Justice Equality & Law Reform & Ors [2004] IEHC 756 (21 December 2004)
URL: http://www.bailii.org/ie/cases/IEHC/2004/H756.html
Cite as: [2004] IEHC 756
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Judgment Title: Lupascu -v- Minister for Justice Equality & Law Reform & Ors

Neutral Citation: [2004] IEHC 756 JR

High Court Record Number: 2003 756 JR

Date of Delivery: 21 December 2004

Court: High Court

Composition of Court: Peart J.

Judgment by: Peart J.

Status of Judgment: Approved

 

 

THE HIGH Court [2004] IEHC 400

Record Number: 2003 No. 756 JR
Between:
Vasile Lupascu
Applicant
And
Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Respondents

 

Judgment of Mr Justice Michael Peart delivered the 21st day of December 2004:

This is an application under s.5 of the Illegal Immigrants (Trafficking) Act, 2000 (“the 2000 Act”) for leave to commence judicial review proceedings for an order of certiorari quashing firstly the deportation order dated 7th August 2003 but notified and deemed to have been received by the applicant on or about the 13th October 2003; and secondly the notification itself pursuant to s. 3(3)(b)(ii) of that Act, which is dated the 9th October 2003.

For all practical purposes the relevant date is the 13th October 2003. No extension of time is required, the application for the present relief having been filed on the 21″ October 2003.

The applicant seeks also reliefs under Order 84 of the Rules of the Superior Courts which I will refer to Sabiya type relief.

The history of this case has been long, extending as it does back to the time of the applicant’s arrival in this State more than five years ago, on the 12th February 1999. The time which has passed, for various reasons which I will outline, is relevant to
why the applicant seeks leave to apply for the reliefs set forth in his Statement of Grounds, and it is part of his case that during the time which has passed, including between the 14th December 2001 when he was notified of the Minister’s proposal to
make a deportation order, and the 13th October 2003, the deemed date of that order, his circumstances changed in a number of material and relevant ways, including ways known to the Minister and that the applicant was not afforded any opportunity to make representations to the Minister in relation to these changed circumstances before the Deportation order was made.

The Grounds relied upon are, inter alia, that by virtue of the lapse of time the Minister has acquiesced in the applicant’s presence in the State; that he ought to have been afforded a further opportunity to make updated submissions; that these changed circumstances include having integrated into the State to a very considerable extent during that period of delay, including having entered into a mortgage for the purchase of buying property; that his wife was given a work permit by the Minister for Enterprise, Trade And employment and that certain rights flow to the applicant by virtue of this fact; and that the Minister has failed to give adequate reasons for his decision and has therefore acted unreasonably, and in breach of fair procedures.

The application for leave is grounded principally on an affidavit sworn by the applicant on the 21st October 2003, which I shall come to shortly.

The affidavits:

The applicant says that he arrived here on the 12th February 1999 whereupon he immediately made an asylum application which the RAC decided to transfer to the United Kingdom. A refusal of an appeal against that decision issued on the 10th August 1999. The Minister made a deportation order on the 10th November 1999, whereupon Judicial Review proceedings, as well as Habeas Corpus proceedings were instituted following his arrest on foot of the Deportation Order. Leave was granted to seek Judicial Review, following which the proceedings were compromised. The applicant was permitted to re-enter the asylum process, and was interviewed on the 11th July 2000.

He received an adverse decision by letter dated 31 st July 2000. He appealed against that decision, and following an oral hearing his appeal was rejected by Decision dated 2nd July 2001, communicated to the applicant by letter dated 7th August 2001.

This was followed by a letter dated 14th September 2001 from the Minister wherein the Minister indicated that he intended to make a Deportation Order and invited submissions pursuant to s.3 of the Immigration Act, 1999. Written submissions were made by solicitors acting on the applicant’s behalf by letter dated 2nd October 2001.

The applicant states that he heard nothing further until he received a letter dated 9th October 2003 (over 2 years later) which enclosed a Deportation Order, and he says that the deportation order “was triggered by my request to the Tanaiste and Minister for Enterprise, Trade and Employment, Ms. Mary Harney T. D. who is my local T. D. to assist me in obtaining identification from the first named Respondent for the purpose of applying for a driving licence “.

I should just add at this point that in his replying affidavit Mr Gleeson disputes these matters, and avers that in fact the applicant attended at the Department’s offices on the 25th March 2003 “in order to renew his identity card and request the return of such original documents as may have been on his file”. Mr Gleeson exhibits a letter dated the 26th March 2003 from the Department and addressed to “To Whom It May Concern” in which it is stated (a) that his asylum application has been refused, (b) consideration is being given as to whether to grant the leave to remain application or to return him to his country of origin, and (c) the Department is not in a position to issue the applicant with an identification document. Mr Gleeson says that the \Deportation Order was not “triggered” in the manner stated by the applicant.

The applicant then goes on to state that in the two years from the date of the Minister’s proposal to deport he has put down what he describes as “substantial roots in the State” and that in particular he has taken out a mortgage and bought property in the State where he now resides. He says also that his wife has been granted a work permit which, at the date of his affidavit certainly, is valid and in force.

On behalf of the respondents there is an affidavit sworn in reply by Joseph Gleeson sworn on the 19th January 2004. Briefly stated, Mr Gleeson maintains that the applicant has at all times known that he had no right to remain in the State; that he has been in touch with the authorities and had received correspondence from them during the period concerned; that he has known at all times that the Minister was proposing to make a deportation order; that no legitimate expectation that he would be allowed to remain can have arisen, and that the Minister has in no way acquiesced; that his wife’s work permit in no way affects the status of the applicant here; and that the reasons for the Minister’s decision is clearly set forth in the letter of notification sent (i.e. he is a failed asylum seeker).

I have already mentioned what Mr Gleeson says about some of the applicant’s averments about having heard nothing from the Minister during the relevant period of delay between the proposal to make the deportation order and the deportation order itself.

Submissions:

Counsel has stated that the applicant informed the Department that he was going to
apply for a mortgage, and also that the applicant paid €7000 in respect of stamp duty.
However none of this is contained in any affidavit before this Court. Counsel also
referred to the fact that in document which is the “Examination of file under Section 3 of the Immigration Act, 1999” dated 6th May 2003, the Clerical Officer in the
Repatriation Unit of the Minister’s Department has stated at page 2 thereof that “Mr Lupascu’s connection to the State lies in his application for asylum”. He goes on to submit that in fact it is clear from this very document that this is incorrect in as much as there is reference in the previous paragraph of the document that the officer had investigated the matter and states a number of family details such as that he is married with one child, that his wife entered the State and obtained a work permit, that her visa was renewed, that their son was granted a visitor’s visa valid until I 9th September 2002, that neither his wife nor his son applied for asylum, that his wife claimed child benefit, and so on.

But it is submitted that during the following period and before the decision to refuse leave to remain was made, the applicant’s circumstances changed, and his links here deepened, and it is submitted that the applicant ought to have been afforded an opportunity to update his circumstances between May 2001 and October 2003.

It is submitted that when one looks at the decision in October 2001 and compares it to the decision in October 2003, it is clear that the Minister took matters into account on which the applicant was afforded no opportunity to be heard. In this regard I have been referred to a decision of mine contained in an unreported judgment in Botusha v. Minister for Justice Equality and Law Reform. That was a case in which the Minister was made aware that a medical report was being obtained and would be furnished, but the Minister went ahead and made the order without waiting for the medical report to arrive. In those circumstances I decided that fair procedures required that he ought to have awaited the medical report. The facts are different to the present case, but the applicant points to the importance which I attached to the requirement that procedures be fair.

Counsel points to the fact that nowhere has the Minister taken into account the mortgage which the applicant took out in connection with the property purchased in the period concerned, and that this is a connection which is above and beyond the connection referred to as existing solely on the basis of his asylum application. It is also submitted that the decision to make the Deportation Order so suddenly was triggered by the approach made in connection with the seeking of an identity document in March 2003, and that thereafter there was what was described as a rush to get the applicant out of the country. That is a breach of fair procedures in the submission of the applicant.

Counsel on behalf of the respondents has submitted that the applicant was afforded the opportunity to make submissions and he did so with the assistance of experienced solicitors, and that he could at any time between that time and the eventual decision have made any further representations he may have wished, in order to take account of any matters which he considered constituted changed circumstances or which would be relevant to the Minister’s consideration of his application for leave to remain, but that for whatever reason, the applicant chose not to communicate with the
Minister in that regard, although he did have communication in March 2003 when he sought identity documentation, which was refused for the reasons stated. It is pointed out that in the said letter of refusal dated 26th March 2003 which was handed to the
applicant it is stated that his application for leave to remain is under consideration, and that this was the perfect opportunity for the applicant to make some updated representations to be taken into account.

The respondent submits that the Minister’s duty is to consider whatever application is made for leave to remain, and that in this case he did so. It is submitted that the onus is on the applicant to bring to the Minister’s attention any matters relevant to that consideration, and that in the absence of any further submission being made, the Minister is entitled to proceed on the basis of whatever material has been placed before him. It is also pointed out that the applicant was not taken by surprise about a decision on his leave to remain application being made, since it is specifically referred to in the letter dated 26th March 2003 handed to the applicant.

Counsel has submitted that the applicant cannot regard himself simply as an inactive or passive participant in the asylum/immigration process, and that it is up to him to appraise the Minister of matters relevant to the latter’s consideration of his application.

I have also been referred to my judgment in Sofroni v. The Minister for Justice, Equality and Law Reform, unreported, 9th July 2004. In that judgment I referred to the status in the State of an asylum seeker during the period of time spent here during the asylum process, and that nothing which arose during that time by way of delay could create any legitimate expectation that the applicant’s status as an asylum seeker would transform into something else, such as a person who would be allowed to remain. In the present case it is submitted that even the delay which occurred cannot alter the applicant’s status or render it more likely or confer any legitimate expectation that his application for leave to remain would be granted. On the other hand Counsel for the applicant has stated that the applicant is not relying on a legitimate expectation, but rather on the delay which has occurred between the making of the proposal to deport and the Deportation order itself, as well as the fact that the applicant was denied an opportunity to make updated submissions or
representations prior to the Minister’s eventual decision, and seeks support from my judgment in Botusha to which I have referred earlier, rather than Sofroni. Particular reliance is placed on Grounds 1,2, and 3 in the Statement of Grounds, i.e. the delay, the lack of a further opportunity to make updated submissions, and the change in the applicant’s circumstances since the original proposal to deport some two years previously.

Conclusion:

This is firstly an application for leave under s.5 of the 2000 Act, and the task of the applicant in such a case is less arduous than if this were the hearing of the substantive
application after leave is granted. Nevertheless, it is beyond doubt that the applicant has to establish substantial grounds, that is grounds which are of substance, arguable, weighty, and not trivial or tenuous. The fact that this is an application required to be made on notice means that an applicant’s task is more onerous than is the task of an applicant for leave under Order 84 of the Rules of the Superior Courts, where such an application is made on an ex parte basis. Therefore the Court must, in addition to hearing what is urged by the applicant, have some regard to the arguments and submissions made by the respondents, and yet at the same time do so in a way that is not to the extent or degree that will be done at a substantive hearing. If the level of the bar over which the applicant for leave must pass is at the same height than at the substantive hearing, there seems no purpose served by the requirement for an application for leave on notice, other than to add an unnecessary layer of cost and delay in the process. Where arguments are fulsomely made by Counsel on each side, the task of confining consideration of the application for leave to the limited way required can be difficult.

However, at this stage of the process, there is no doubt that applicant must put forward substantial grounds for contending that he is entitled to apply for relief. The first ground put forward in his Statement of Grounds is that the Minister has been guilty of excessive delay between 14th December 2001 and the 13th October 2003. The first matter to remark is that there is no prescribed time within which the Minister must make the Deportation Order following the notification of his proposal to do so. I do not consider that the applicant has made out substantial grounds, to the necessary
extent, that by this delay the Minister could be deemed to have acquiesced to the presence of the applicant here, and this is particularly so in the light of the Minister’s letter dated 26th March 2003 which makes the position of the applicant clear at that point in time.

It is claimed also that the Minister “ought to have afforded the applicant a further opportunity to make updated submissions “. In this regard it is clear that any updated submissions which the applicant wished to make could have been made at any time prior to 14th December 2003, and if he had done so, then almost certainly the Minister would have been obliged to have considered them, and would have done so. That follows in my view from what I stated in Botusha, where the Minister was made aware that a medical opinion was being obtained, but he made the Deportation Order without allowing a reasonable time to receive the promised report. It is another matter completely to say that in all cases where there has been a certain amount of delay, the Minister must communicate with such an applicant and invite a further submission. In this particular case, the applicant himself who is possessed of all relevant knowledge about his own circumstances was aware as of the 26th March 2003 that his application for leave to remain was under consideration and that the Department had stated that it was not in a position at that time to issue him with an identification document. That was a very clear signal which ought to have prompted the applicant to update his situation if he so wished.

I do not consider it to be arguable that the Minister is in breach of any obligation, statutory or otherwise as far as fair procedure is concerned, to communicate with the applicant and invite a further submission. The applicant is not simply an inactive or passive participant in this process. He is obliged to act in his own interests, and in this case it is a fact that he sat back and waited for things to happen and he cannot now complain in that regard.

In addition, however, this Court has been provided with no evidence as to the mortgage or house purchase which has been made. That is another onus which remains undischarged in the substantiating of this argument even for the purposes of this leave application. This is clearly relevant to the third ground argued, namely that the applicant’s circumstances have altered as a result of the delay complained of. In
this case the Court has simply a bald assertion about the mortgage. It would not be difficult to exhibit relevant documentation in this regard, and the applicant is under an obligation of candour in an application such as this.

It is also not in my view arguable to the required degree in an application of this nature that by granting the applicant’s wife a work permit, the Minister was thereafter not entitled to make a Deportation Order in this case once his application for asylum had failed. The Minister was entitled to follow, as he did, the statutory procedure.

Ground 5 has not been made out in any fashion whatsoever.

The applicant has not put forward arguments in relation to Ground 6, and in relation to ground 7 1 am not satisfied that any substantial ground has been made out for leave regarding the Minister having relied on materials or documents not made available to the applicant. The same applies in relation to Ground 8 regarding adequate reasons for his decision. The reason for the decision is made clear, and he has stated that he has had regard to the representations made on his behalf. The other grounds related to this argument similarly do not cross the required threshold of arguability.

I therefore refuse the reliefs sought except in relation to the ground which has been allowed in a number of cases regarding the fact that no destination of deportation is contained in the Deportation Order.

I will allow leave in respect of paragraph C4 on the Ground set out at paragraph (e) 9.

Nagra v The Minister for Justice and Equality & ors

(Approved) [2018] IEHC 398 (05 June 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 398JUDICIAL REVIEW[2018 No. 200 J.R.]BETWEENJAZAB AZEEM NAGRAANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITYRESPONDENTANDIRELAND, THE ATTORNEY GENERAL AND THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSIONNOTICE PARTIESJUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of June, 20181. The applicant is a Pakistani national. His older brother moved to the U.K. in 2007 and is now a citizen of that country. Theapplicant followed his brother to the U.K. in 2012 and then to the State on 20th February, 2015. On 5th August, 2015 he applied for aresidence card as a permitted family member. Up to 2nd May, 2016 he was here unlawfully. Intermittently between 2nd May, 2016and 21st May, 2017 he was given a stamp 4 permission as an applicant for a residence card but clearly was not present on a settledbasis. On 16th May, 2016 his application for residency was refused. After 21st May, 2017 he was unlawfully present in the State. Theapplicant is not a settled migrant on any view, and indeed counsel accepts this on his behalf.2. On 26th June, 2017 his application for review of the refusal of a residency card was dismissed. On the same date a proposal tomake a deportation order was made. On 17th July, 2017 and subsequent dates, submissions were made in that regard. On 26thJanuary, 2018 a deportation order was made.3. I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Shannon Michael Haynes B.L.) for the applicant andfrom Ms. Emily Farrell B.L. for the respondent and the first and second notice parties.Relief sought4. The primary substantive relief is certiorari of the deportation order. I note that no challenge was made to the refusal of residency,so caselaw such as Khan v. Minister for Justice and Equality [2017] IEHC 800 [2017] 10 JIC 2712 (Unreported, Faherty J., 27thOctober, 2017) (currently under appeal) does not apply.Ground 1 – Contention that a relationship between adult siblings does not require wholly exceptional circumstances to giverise to an art. 8 issue.5. It is clear that deportation of an unsettled migrant only gives rise to breach of art. 8 in exceptional circumstances: C.I. v. Ministerfor Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385, P.O. v. Minister for Justice and Equality [2015] 3 I.R. 164 [2015] IESC 64;see also John Stanley, Immigration and Citizenship Law (Dublin, 2017) at pp. 397 et seq. citing Costello-Roberts v. the UnitedKingdom [1993] 19 EHRR 112 (Application no. 13134/87, European Court of Human Rights, 25th March, 1993) and P.S.M. v. Ministerfor Justice and Equality [2016] IEHC 474 [2016] 7 JIC 2930 (Unreported, High Court, 29th July, 2016).6. The examination of file stated that the relationship between adult relatives was not “usually” covered by art. 8 of the ECHR, asimpliedly applied by the European Convention on Human Rights Act 2003, except where there were wholly exceptional circumstances.Mr. de Blacam accepts that the test was correctly stated that relationships between adult relatives do not necessarily attract theprotection of art. 8 without elements of dependency involving more than normal emotional ties (see Ezzoudhi v France (Applicationno. 47160/99, European Court of Human Rights, 13th February, 2001). The analysis goes on to say that the material on file did notestablish that dependency was based on more than normal emotional ties “or” that exceptional circumstances existed such as toattract the protection of art. 8. The word “or” covers both scenarios. The Minister has clearly decided that there were twoalternative bases for rejecting a claim that a breach of art. 8 would occur on deportation. In order to succeed, the applicanttherefore must show that the Minister unlawfully determined that there were no more than normal emotional ties. He has not soshown.7. In any event, there was no error because the applicant is an unsettled migrant and thus exceptional circumstances are required.More fundamentally Lord Bingham noted in R. (Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368 [2004] UKHL27 at para. 20 that decisions taken pursuant to the lawful operation of immigration control will be proportionate in “all save a smallminority of exceptional cases”: see e.g. Agbonlahor v. Minister for Justice and Equality [2007] IEHC 166 [2007] 4 IR 309 per FeeneyJ., at para. 30 which refers to exceptional cases. Furthermore, the applicant has not demonstrated dependency on the brotherinvolving more than normal emotional ties. Therefore, he cannot succeed under this heading. He was working himself for around a yearand had permission to work. Thus, he clearly has capacity to earn an income independently of the brother. To that extent the broadaverment at para. 2 of his grounding affidavit used in the ex parte application that “I am fully dependant on my brother”, whilepossibly intended to refer only to the current factual situation is not exactly the most forthcoming in terms of the fact that he doesnot draw attention to material in the exhibits showing that for a time he had a separate source of income.8. Reliance is placed on the European Commission on Human Rights decision in Advic v. the United Kingdom (Application no. 25525/94,6th September, 1995) to the effect that “the Commission’s first task is to consider whether a sufficient link exists between therelatives concerned to give rise to the protection of art. 8”. Reliance is placed in that decision on the way in which the matter isnegatively put in S. and S. v. the United Kingdom (Application no. 10375/83, European Court of Human Rights, 10th December, 1984)DR 40 p. 196, to the effect that a relative would not necessarily acquire the protection of art, 8 without further elements ofdependency beyond normal emotional ties. The same point was made in Z. and T. v. the United Kingdom (Application no. 27034/05,European Court of Human Rights, 28th February, 2006) relying on Ezzoudhi v. France (Application no. 47160/99, European Court ofHuman Rights, 13th February, 2001) para. 34.Page 2 ⇓9. As it is put in Advic the “first question” is whether the relationship between the parties is such as to give rise to the potentialapplication of art. 8. That is only a first question, and not by any stretch of the imagination the only question for the purposes ofwhether a violation of art. 8 is established. The Minister considered that the answer to that question was in the negative. That seemsa lawful determination to the effect that the level of dependency established in the present case is insufficient. The Minister gavetwo bases for the decision, as illustrated by the use of the word “or”. Even if the answer to that question was yes, the question isonly a threshold question. The fundamental point remains that the consideration of the application of art. 8 in the immigration contextmust be carried out by reference to whether an applicant is a settled migrant. If an applicant is an unsettled migrant, then whollyexceptional circumstances must apply for deportation to breach art. 8. Thus the Minister’s decision is also valid under the exceptionalcircumstances heading. This point was not considered by the England and Wales Court of Appeal in Senthuran v. Secretary of Statefor the Home Department [2004] EWCA Civ 950 (16th May, 2004), which I, do not consider to be a hugely helpful decision for thatreason.Grounds 2 and 3 – undue weight being placed on earlier decisions under the European Communities (Free Movement ofPersons) Regulations 2015 (S.I. No. 548 of 2015)10. The claim is made that undue weight was placed on the refusal of residency and that insufficient regard was had to evidence ofdependency as of January, 2015. However, the reference to the previous decisions was in the context of a finding that there was noevidence of more than normal emotional dependency. The earlier decisions were simply facts being legitimately considered in thatcontext as background and material that could be lawfully referred to, not as independent reasons for making of a deportation order.There is no basis to say that insufficient regard was had to up-to-date evidence of dependency seeing as the Minister states that allsubmissions were considered, a point that is also averred to on his behalf. The applicant has not demonstrated that this was not so:see G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] 1 ILRM 401 per Hardiman J.Order11. For these reasons the application will be dismissed.

A.W.K.(Pakistan) v The Minister for Justice and Equality & ors

(Approved)

[2018] IEHC 550 (25 September 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 550JUDICIAL REVIEW[2018 No. 430 J.R.]BETWEENA.W.K. (PAKISTAN)ANDAPPLICANTTHE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of September, 20181. The applicant claims he was born in Pakistan in 1991. He says that he went to Lahore in March, 2010 and to the United Kingdom on28th January, 2011, where he studied accountancy and then subsequently apparently changed studies to the security industry. Heapplied for leave to remain. That application was rejected. He appealed in April, 2015 and, with his student permission about to expireas of December, 2015, he came to Ireland, arriving on 25th August, 2015. He then applied for asylum on 26th August, 2015,apparently never having sought protection during his years in the U.K. That application was rejected by the Refugee ApplicationsCommissioner on 29th August, 2016. He appealed to the Refugee Appeals Tribunal against that rejection. Following thecommencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection on 13thFebruary, 2017, an application that was then remitted to the International Protection Office and refused on 10th July, 2017. Anappeal to the International Protection Appeals Tribunal was dismissed on 13th October, 2017. On 26th July, 2017, he was informedthat the Minister had refused permission to remain in the State under s. 49(4)(b) of the 2015 Act. On 15th and 24th November, 2017he made representations out of time to review that decision under s. 49(7) and (9). On 15th March, 2018 the IPO rejected the reviewunder s. 49(9) and the applicant was so notified on 23rd April, 2018. On 3rd May, 2018 he sought a further review. On 8th May, 2018a deportation order was made. On 10th May, 2018 the IPO informed the applicant that the review had been completed and no furtherreview arose. The present proceedings were filed on 31st May, 2018 and moved ex parte on 12th June, 2018.2. I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicant and from Mr. David Conlan Smyth S.C. (with Ms.Sarah-Jane Hillery B.L.) for the respondents.Relief sought3. The primary relief sought falls essentially into two categories: (i) certiorari of the s. 49(9) decision of 15th March, 2018 andconsequential certiorari of the deportation order and (ii) mandamus to compel the Minister to consider the further purportedapplication under s. 49(9), made on 3rd May, 2018.Is the case covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000?4. Mr. Conlan Smyth submits that what is at issue is merely a review rather than a decision, but that is something of amischaracterisation. The rejection of the review application is itself a form of decision and therefore, as Mr. Dornan puts it, “a targetfor judicial review”. That does not, however, determine the issue as to whether or not it should be regarded as covered by s. 49(4)(b). Section 79 of the International Protection Act 2015 adds to the list of decisions covered by s. 5 of the Illegal Immigrants(Trafficking) Act 2000 a number of further decisions including a new para. (oi), which is “a decision of the Minister under s. 49(4)(b)”and a new para. (oj), which is “a deportation order under s. 51”. The question then is whether a decision on a review under s. 49(7)is a decision under s. 49(4)(b) of the 2015 Act for the purposes of s. 5 of the 2000 Act, as so amended.5. Section 49(8) provides that “Subsections (2) to (5) shall apply to a review under subsection (7)” subject to a qualification notrelevant here. Therefore, on a literal interpretation, subs. (4) applies and a refusal of a review under subs. (7) should be deemed tobe a decision under s. 49(4)(b).6. If I am in any way wrong about that, a purposive interpretation favours the application of s. 5 here. The logic of paras. 41 and 42of my decision in K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May,2016) applies, namely that the rejection of a review is an adverse immigration decision which is relevant to the presence or removal ofan illegally present non-national. Therefore s. 5(1)(oi) of the 2000 Act should be construed in a manner that gives effect to thatpurpose. Furthermore, looking at that purpose in the very specific context of the sequence of deportation decisions, it would betotally illogical if a refusal of permission under s. 49(4) were to be subject to s. 5, the consequential deportation order were to be sosubject and a decision refusing to revoke the deportation order under s. 3(11) of the Immigration Act 1999 were to be so subject(see K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 and K.R.A. v. Minister for Justice and Equality [2017] IECA 284(Unreported, Court of Appeal, 27th October, 2017)) but a review in between would not be so subject, and instead would be coveredby the relatively leisurely three-month time limit pursuant to O. 84. That would make no sense whatsoever on any level.7. Even if s. 5 of the Interpretation Act 2005 does not apply, and for the avoidance of doubt I consider that that does not need to beaddressed because there is not ambiguity in the provisions of para. (oi) and s. 49, a purposive interpretation applies to any legal text.The point was made by Hart and Sacks that “Law is a doing of something, a purposive activity, a continuous striving to solve thebasic problems of social living… Legal arrangements (laws) are provisions for the future in aid of this effort. Sane people do notmake provisions for the future which are purposeless” (Henry Hart and Albert Sacks, The Legal Process (Cambridge, C.U.P., 1958) atp. 148). I should add that similar views were expressed by Judge Aharon Barak, whose work “presents purposive interpretation as ageneral system of interpretation to be used for all legal texts” (Purposive Interpretation in Law (Princeton, 2005) p. xi): “Law has apurpose. It is a social device. The goal of interpretation is to achieve the social goal of law. That is the theoretical basis for thecentrality of purpose in purposive interpretation” (p. xv). On such an analysis, even independently of s. 5 which excludes penal orother sanctions, the rule on purposive interpretation applies to any form of legal instrument, legislative or otherwise.8. In any event, if there is any ambiguity s. 5 of the 2005 Act does apply because a deportation order is neither penal nor a sanction;rather it is a civil consequence of an applicant’s illegal presence in the State. Mr. Dornan characterises it as an interference withliberty but that is an over-dramatization. A deportation order is the formalisation of the status of a person who is present in the Statewithout the permission of the Minister and whose presence is therefore unlawful for all purposes under the Immigration Act 2004. SuchPage 2 ⇓a person has at all times the option of voluntarily leaving the State and it is only if he or she has failed to do so that the deportationorder is made; and indeed in practical terms it is only if they fail to do so following the making of that order that the order will beenforced by arrest. Indeed I might add that all civil law obligations are ultimately enforceable by arrest if non-compliance turns intocontempt of court, but that does not turn all law into penal law.9. Reliance was placed on Sessions v. Dimaya, 584 U.S. ___ (2018), but that is not a hugely convincing decision and strikes one, veryrespectfully, as a questionable approach which if applied here would certainly amount to a wrong turning in the law, specifically thedescription of deportation as a sanction and the view that the criteria for deportation can be reviewed as void for vagueness.Certainly as far as Irish law is concerned, deportation cannot be viewed as a sanction. In any event, the U.S. caselaw relied on inDimaya refers to deportation by reason of the applicant having committed a crime. Here, however, deportation arises not because theapplicant has committed a crime but because he is unlawfully present. But even if it were based on criminal offending it would be acivil consequence of the offending behaviour rather than a criminal punishment. As regards the vagueness doctrine, the dissentingjudgment of Thomas J., particularly at slip op. pp. 19-20, that the core of the deportation statute is not vague, is considerably moreattractive. The majority opinion relies heavily on Johnson v. United States, 576 U.S. ___ (2015) but again, if I may very respectfullysay so, the characteristically elegantly written dissent of Alito J. is considerably more powerful, particularly where he refers at slip op.p. 1 to “the well-established rule that a statute is void for vagueness only if it is vague in all its applications” (see also slip op. p. 14citing Village of Hoffman Estates v. The Flipside, Hoffman Estates Inc. 455 U.S. 489 (1982) at 494-495 and Chapman v. UnitedStates 500 U.S. 453 (1991) at 467).Inadequate consideration of submissions10. Two important contextual matters regarding the complaint that the Minister inadequately considered the applicant’s submissionsneed to be noted. First of all, this was an applicant who had already been refused permission and was now seeking a review of thatdecision. Secondly, this was also an applicant who had no permission to be in the State other than the temporary and expiredpermission as a failed protection seeker. The decision under challenge states that all submissions were considered and the onus is onthe applicant to demonstrate that that is not the case: see the judgment of Hardiman J. in G.K. v. Minister for Justice, Equality andLaw Reform [2002] 2 I.R. 418 [2002] 1 ILRM 401, which the applicant has failed to do here. While it is true that s. 49(3) of the2015 Act requires the Minister to consider family rights, that does not detract from the well-established Strasbourg caselaw thatdeportation of an unsettled migrant will only breach art. 8 of the ECHR in exceptional circumstances (as applied here under theEuropean Convention on Human Rights Act 2003, see for example Costello-Roberts v. the United Kingdom [1993] 19 EHRR 112(Application no. 13134/87, European Court of Human Rights, 25th March, 1993) and Rodrigues de Silva and Hoogkamer v. TheNetherlands (Application No. 50435/99, European Court of Human Rights, 31st January, 2006, para. 39).11. The decision in any event provides quite a degree of express reference to the detail of the applicant’s submission under theheading of his private life rights. At p. 1 it refers to correspondence submitted on behalf of the applicant and his network of friends inthe country. At p. 2 it refers to his photography diploma, his involvement in various groups, his education and training, his characterreferences, including from the providers of accommodation, and his various certificates and qualifications. At p. 3 reference is made tohis job offer, his voluntary work, his involvement in a theatre group and a dance group, a letter from his accommodation centre andcharacter references. So while there is no obligation on the IPO to engage in narrative discussion of all the various points in favour ofthe applicant, that was very much done here.12. The allegation is made by Mr. Dornan that the IPO “disregarded” the material submitted but that is most certainly not the caseand involves the classic error of confusing failure to engage in lengthy or any narrative discussion with failure to consider material orsubmissions made. Indeed, the oral submission made that the respondents “did not consider the job offer, qualifications andcharacter references” is manifestly unsustainable – indeed unstateable – having regard to the terms of the decision. Insofar as theview was taken that the majority of the issues arising in relation to the applicant’s private life predated his presence in the Statethere seems to be quite a degree of factual support for that.13. Reliance was placed on the judgment of Clark J. in Igiba v. Minister for Justice, Equality and Law Reform [2009] IEHC 593(Unreported, High Court, 2nd December, 2009) where at para. 20 she said that certain UK caselaw regarding art. 8 had “no impact onthe Irish situation as no “exceptionality” test has ever applied here”. It is by no means clear what that statement was intended tomean but if it means that exceptional circumstances are not required to show a breach of art. 8 for an unsettled migrant then Irespectfully must conclude that such a view would be clearly incorrect, because well-established Strasbourg caselaw repeatedlyemphasises the contrary. Whatever that sentence means in any event, it is superseded by the judgments of the Court of Appeal inC.I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385 and the Supreme Court in P.O. v. Minister for Justice andEquality [2015] 3 I.R. 164 [2015] IESC 64 and by the extensive body of Strasbourg caselaw to the effect that deportation ofunsettled migrants breaches art. 8 only in exceptional circumstances14. It is true that in Luximon v. Minister for Justice and Equality [2018] IESC 24 [2018] 2 I.L.R.M. 153, the Supreme Court took theview that it was going too far to say that the art. 8 rights of unsettled migrants were minimal to non-existent, but that certainly doesnot change the fundamental point that deportation of such an unsettled migrant only breaches art. 8 in exceptional circumstances.Therefore, there was no illegality in the Minister having regard to the lack of any such exceptional circumstances here.Refusal to consider further request for review15. Section 49(9) of the 2015 Act provides that the applicant may make a submission seeking a review “within such period followingreceipt by him or her under s. 46(6) of the decision of the Tribunal as may be prescribed”.16. The International Protection Act 2015 (Permission to Remain) Regulations 2016 (S.I. No. 664 of 2016) prescribes a period of fivedays following receipt of the decision of the tribunal for this purpose. The interpretative rule in s. 18(a) of the Interpretation Act 2005that the singular includes the plural is subject to the context otherwise requiring: see s. 4(1) of the 2005 Act. By definition, thewording of s. 49(9) is such that there can only be one such review because an applicant only gets the tribunal decision once. Theapplicant’s further attempt to invoke s. 49(9) is therefore totally misconceived and legally baseless.17. Furthermore, the applicant in these proceedings seems to have sought the incorrect relief in the sense that no certiorari of therefusal to consider the further or later view is sought. If the point had any substance it might have been possible to consider howthat procedural difficulty could be circumvented, but as the point is manifestly unsustainable that issue does not arise. In any event,the applicant is not without a remedy because if there is any fundamental change of circumstances after the s. 49(9) review, s.3(11) of the 1999 Act applies: see s. 51(4) of the 2015 Act.Time18. The application is out of time because s. 5 of the 2000 Act applies, but I do not need to base my order on that issue because Iam rejecting the proceedings on their merits.Page 3 ⇓Order19. Accordingly, the order will be:(i). that the application be dismissed; and(ii). that the respondents be released from their undertaking not to enforce the deportation order.

Gorry & anor v Minister for Justice and Equality and A B M v Minister for Justice and Equality

(Unapproved) (Rev 1) [2020] IESC 55 (23 September 2020)

 

 

THE SUPREME COURT

 

Supreme Court Appeal No. 2018/9

 

 

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

 

 

Between/

I. Gorry and Joseph Gorry

 

Applicants (H.C.)/Respondents

 

– and –

 

The Minister for Justice and Equality

Respondent (H.C.)/Appellant

 

AND

 

Supreme Court Appeal No. 2018/11

 

Between/

 

A.B.M. and B.A.

Applicants (H.C.)/Respondents

 

-and-

 

The Minister For Justice And Equality

Respondent (H.C.)/Appellant

 

Judgment of O’Donnell J. delivered on the 23rd day of September, 2020

I. Introduction

1. There is no doubting the importance, or difficulty, of the issues raised by these appeals. For more than 40 years, the Irish courts, lawyers, and academic writers have struggled with the manner in which the provisions of the Constitution protecting the Family, and Articles 41 and 42 in particular, should be applied, particularly in the field of immigration. The interpretation of those Articles has never been easy, but changing attitudes to marriage and family relationships and the phenomenon of significant immigration are two of the areas in which this country has seen the greatest changes since the coming into force of the Constitution and which have, indeed, been reflected at the level of constitutional change.

2. The common question raised by these appeals is the approach the Minister must take when he or she is invited to revoke a deportation order made against a non-national who has become married to an Irish citizen, thereby creating a family. Obviously, the same considerations arise when it is proposed to make a deportation order against a non-national spouse of an Irish citizen or, indeed, when permission is sought for a spouse of an Irish citizen to enter and reside in the State. At a more general level, however, the fundamental question of the weight to be given to the constitutional protection of Marriage and the Family may arise in a variety of situations in which decisions come to be made in respect of one member of that family, often a spouse, in circumstances where it is plain that the decision will have an impact upon a marriage and family.

3. The facts of each of these cases are set out in the comprehensive judgment of McKechnie J., to which recourse should be had for any additional matter of detail. For present purposes, the core facts of each case, which give rise to the legal issues, can be stated quite succinctly.

4. The Gorry case was the principal focus of the decision of the Court of Appeal. A Nigerian woman came to Ireland and sought asylum: unsuccessfully. Ultimately, a deportation order was made in June, 2005. She remained in Ireland – illegally and evading deportation. She met an Irish man, Mr. Gorry, in 2006, and formed a relationship. In 2009, they travelled to Nigeria, were married, and made an application for revocation of the deportation order and for a visa for Mrs. Gorry to enter Ireland. These applications were refused. Mr. Gorry visited his wife in Nigeria. He found the experience physically difficult and, on his return to Ireland, suffered a heart attack. He says he has been advised not to fly and, in particular, not to stay in Nigeria for any amount of time due to the lack of sufficient medical treatment for his condition if he were to experience a further heart attack. A second application for revocation was made and refused, and is challenged in these proceedings.

5. The High Court (Mac Eochaidh J.) quashed the decision of the Minister. The Court of Appeal upheld that decision, although differing somewhat as to the analysis to be applied. The couple had separated after the High Court decision; however, the Court of Appeal considered that the case should not be treated as moot because of the importance of the issues involved. The Court of Appeal considered it was incorrect to conclude that an Irish citizen had a right to have a non-national spouse to reside with them in Ireland, or even a prima facie right to do so, as the High Court had held. Indeed, it appears that this conclusion of the High Court and its possible ramifications were both significant in prompting the appeal to the Court of Appeal. However, that court also considered the Minister had failed to correctly recognise and weigh the constitutional rights involved in the case. In particular, it appeared that the Minister had treated the question of the constitutional rights of the married couple and family involved as essentially indistinguishable from the rights they possessed under the European Convention on Human Rights (“E.C.H.R.”) and had applied the analysis found in the case law of the European Court of Human Rights (“E.Ct.H.R.”) without giving separate consideration to the position under the Constitution and, in particular, the family rights which are stated in the Constitution in emphatic terms implying, it was considered, a higher level of protection under the Constitution than was afforded under the E.C.H.R.

6. In the A.B.M. case, a man, also a national of Nigeria, came to Ireland in 2006 and sought asylum and/or subsidiary protection: the applications were unsuccessful. In June, 2008, a deportation order was made. A.B.M. did not, however, present himself for deportation, but rather evaded it successfully for seven years. In early 2014, he applied for revocation of the deportation order. In February, 2015, he married B.A., who was also a national of Nigeria and who had, herself, been refused asylum in 2002 but had been given leave to remain in the State in 2007 and had become naturalised as an Irish citizen in August, 2013. The parties claimed that in October, 2006, they had undergone a religious ceremony of marriage, but one which was accepted not to be legally binding. In July, 2015, the Minister was further informed that B.A. was pregnant. On the 20th of July, the Minister refused to revoke the deportation order which was then challenged in the present proceedings. The High Court (Humphreys J.) dismissed the claim. The Court of Appeal (Finlay Geoghegan, Irvine, and Hogan JJ.) allowed the appeal, essentially on the same grounds as had been applied in Gorry; that is, that the Minister had failed to correctly identify and weigh the constitutional rights involved.

7. The issue common to both cases is, therefore, the approach to be taken by the Minister when it is said, in the broadest sense, that the interests of a married couple and a family are affected by the making of a deportation order or by the decision on the revocation of an order already made where, in each case, the marriage was entered after the making of a deportation order and its evasion. The outcome of both cases is, to this extent, very clear: the Minister’s approach to both cases was flawed, essentially because the Minister had treated the constitutional analysis as identical, and perhaps even subsidiary, to the analysis by reference to the E.C.H.R. I agree with McKechnie J. that the conclusion by the Court of Appeal in this respect is correct and that these appeals must therefore be dismissed.

8. This might suggest that there is, therefore, a relatively high degree of clarity about the approach to be taken to the issues involved, but that would be misleading. It is apparent that there are marked differences of approach evidenced in the case law and while there exists a degree of agreement in a negative sense, namely that the Minister failed to correctly address the issues, there is little consensus, even in the judgments delivered in this case, to date, on the positive side of the calculation and, in particular, the weight to be given to the constitutional interests involved. Moreover, the judgment of McKechnie J. is, as I apprehend it, the first occasion upon which a judgment in this court (endorsing, in this respect, the judgment in the Court of Appeal) has been decided on the explicit basis that there is a constitutionally protected right to cohabit and, moreover, a right to decide to cohabit in Ireland. Such rights are, moreover, held to be family rights protected by Article 41.1.1° and, therefore, rights which the Constitution describes as inalienable and imprescriptible, which have sometimes been described as indefeasible, and endorsed in the judgments of McKechnie J. in this court and Hogan J. in the Court of Appeal as among a complex of rights deserving of “the very highest level of protection feasible in a modern democratic society”. This is a conclusion which deserves careful consideration. If full effect was to be given to the conclusion that an Irish citizen has a constitutional right to decide to cohabit with his or her spouse in Ireland, which is a right deserving of the very highest level of protection in a modern democratic society, there could be far-reaching implications for a wide range of decisions.

9. It might be said, however, that since the broad approach taken by the Court of Appeal is one which mandates a balancing test, and that allowed both for considerable weight to be accorded to factors on the other side of the balance and, moreover, an element of significant discretion in the decision-maker as to how to weigh those factors, there is little practical benefit in debating the analysis and that it is a matter of, rather, academic controversy whether there is a different route which may nevertheless come to the same result in these and many other cases. I do not agree. It is, of course, possible to start from the wrong place and take one or more wrong turns and still arrive at a correct destination, but it certainly makes arrival at the correct terminus more difficult and the possibility of error more likely. In any event, there is, I think, a risk that the approach now suggested in the judgment of McKechnie J. may unintentionally give rise to the very danger the Court of Appeal apprehended in the judgment of the High Court in Gorry; namely, the development of an approach whereby there comes to be accepted a strong presumption in favour of marital and family residence in Ireland which must be overcome by the Minister before a decision can be made on deportation and which the decision-maker may struggle to overcome in particular cases. This is significant when the question of entry to or removal from the country is concerned, but is more significant again because the balance posited and the weightings suggested or applied must have application in many other areas of decision making. While the difference of analysis and approach is not decisive in this case, this decision stands at a junction in the development of the case law on Article 41 and where the route chosen my have longer-term significance. Accordingly, I have reluctantly come to the conclusion that it is necessary to offer my own views, concurring in the outcome of this case suggested by McKechnie J., while differing as to the route to that decision.

 

II. The Approach advanced by the Applicants

10. I respect both the learning and the humane instincts discernible in the approach in the judgment of my colleague and, indeed, those judgments in the courts below which are approved in it. I hope I can accurately and fairly express the reasoning as I understand it. In any event, the following account may facilitate analysis and criticism of my own reasoning, and perhaps highlight the sometimes-subtle differences between the approach of McKechnie J. and that which I would favour. The reasoning, as I understand it, proceeds as follows:

(i) Article 41.1.1° protects certain family rights that are not, however, specified in that sub-Article;

(ii) Although these rights are described as inalienable and imprescriptible, that description is not to be read literally;

(iii) These words are, however, an indicator that the rights protected by Article 41.1.1° should enjoy the highest possible legal protection which might realistically be afforded in a modern society;

(iv) Among the rights protected by Article 41.1.1° is the right of a married couple to cohabit which is derived from the State’s guarantee under Article 41.1.2° to protect the Family “in its constitution”;

(v) Article 41.1.1° also protects the right of a married couple to decide to cohabit in Ireland which can be derived from the State’s guarantee in Article 41.1.2° to protect the Family “in its constitution and authority”;

(vi) “Spousal autonomy” is a core constitutional value protected by Article 41.1.2°;

(vii) These and other unspecified rights protected by Article 41 are, however, not absolute, and can be subject to restriction if there is “compelling justification”;

(viii) Considerations such as the need to uphold the integrity of the asylum system, the interest in controlling entry to the State, maintaining an orderly immigration system, preventing disorder or crime, and ensuring the integrity of the social security and health system are countervailing considerations which could provide such a justification;

(ix) It is, however, incorrect to speak of a right, even a prima facie right, of an Irish citizen to reside in Ireland with their non-national spouse;

(x) The Minister must, however, properly recognise the family rights involved, and in making a decision should pay due regard to:

(a) the guarantee given by Article 41.1.2° to protect the Family in its constitution and authority;

(b) the recognition that the married couple represents a fundamental unit in society possessing inalienable and imprescriptible rights;

(c) a recognition that the decision that the family should live in Ireland is a decision which they have a right to take and which the State guaranteed in Article 41.1.1° to protect; and

(d) a recognition of a right of the Irish citizen to live at all times in Ireland as part of what Article 2 refers to as his “birthright … to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

11. There is little in this, at the level of generality at which it is stated, with which any reasonable person might immediately disagree and much that is plainly referable to the terms of the Constitution and the relevant case law. It is apparent that the approach is intended to permit a balancing exercise by the Minister which, moreover, may allow some, and indeed perhaps considerable, scope for the exercise of ministerial discretion by reference to the particular facts of individual cases. It may be that it is only in rare cases that the test might lead to erroneous decisions and still fewer which might be considered damaging to the State’s legitimate interests. From the broadest perspective, it can be said that it is difficult to say that, at the margins of the immigration decision-making process, the State is significantly affected by whether the line is drawn quite strictly, and thus excluding some individuals, or more generously with the effect that more people are allowed come to, or stay in, this country to seek a better life which may, moreover, enhance our national life.

12. While I acknowledge the attractions of this approach, I regret that I cannot agree with it. I consider that, when analysed closely, it fails to give clear guidance to decision-makers and will, at a minimum, encourage litigation and consequent delay and obstruction of the decision-making process more generally, make it more difficult to come to correct decisions in most cases, and, in some cases, may lead to decisions which are unhelpful, and perhaps positively damaging, to the State’s legitimate interests. More fundamentally, I simply do not consider that the approach is a correct interpretation of the Constitution.

 

III. Some Questions Which Arise

13. It will be necessary to address these matters at greater length, but it is possible to state, I hope reasonably succinctly, my concerns with this approach and thereby at least suggest the questions that it poses.

14. First, I do not agree that it is permissible to discount the clear words of the Constitution or to replace them with an obligation, however well-intentioned, to afford certain unspecified rights the highest level of protection feasible in a modern society. I would rather give the words the meaning they have always been understood to bear, and would interpret the undoubted strength of those words as indicating that the substantive protection afforded by Article 41 is not expansive or unlimited but, rather, specific, and derived, moreover, from the text and structure of the Constitution.

15. I doubt that the Constitution is to be interpreted as creating in Article 41 some unspecified super-rights to be discerned by future generations of judges and limited by equally unspecified considerations including the common good and ensuring the integrity of the social welfare system. Apart from uncertainty, such an approach would create an inevitable risk that in good times the interests of the State in the common good will be undervalued and in bad times, when it is perhaps most important to maintain and protect rights which may be temporarily unpopular, those rights may be overborne.

16. More specifically, while I appreciate the approach seeks to afford considerable leeway to a ministerial decision-maker on matters concerning entry to the State, it is unsatisfactory that it provides little guidance as to the weight to be afforded to the respective considerations which makes, if anything, more troubling the fact that these constitutional rights are to be afforded some higher level of protection. The Minister is told that the way in which he or she made the decision is wrong, but not what weight should be given to the relevant factors in these cases. But, the values involved in this balance are almost entirely constitutional, and therefore the weight is assigned by the Constitution as interpreted by the Courts. The Minister has, undoubtedly, the statutory power to refuse to revoke the deportation orders and it is not suggested that there was any failure to exercise the power in accordance with the statute. The issue is whether the exercise of the power is invalid as interfering impermissibly with rights protected by the Constitution or the E.C.H.R. That is a legal matter rather than an issue for ministerial discretion. Unless there is guidance as to the weight which the Constitution requires, in particular, to be afforded to the factors at play, and in particular the fact of marriage, then it is inevitable that, even if the Minster were to address the matter in any similar case in the way outlined at para. 10 above, the decision could be the subject of challenge.

17. It is, moreover, strange to speak of individual rights (particularly those considered indefeasible or entitled to the highest level of protection) being limited (and, in truth, overridden) by matters as general as those identified such as “the common good” and “the integrity of the immigration process”. Individual rights have value precisely because they are not subordinated to the interests of others. Second, it is unusual for individual rights to be overridden by such vague and general considerations: it is, in truth, hard to understand why, for example, the integrity of the immigration system more generally is put at risk by allowing one couple or family unit to remain in this country. Furthermore, it is not normally enough to say that, while there is an interference with rights, the common good or the integrity of the immigration or social welfare systems are valid countervailing considerations. Instead, the proportionality test, which might be thought to apply with particular rigour in those cases of rights deemed worthy of the highest possible protection, usually requires not only that a legitimate countervailing interest be identified but also that it be established that the restriction of the right is no more than is strictly necessary to achieve that object. Once again, it is possible to envisage plausible arguments that the interference in family life caused by the forced removal of a spouse which may, in some cases, require spouses, and therefore a family, to live apart (and which is therefore not a mere restriction, but a negating of a right of cohabitation if such exists), could not properly be justified by general concerns with the common good or the integrity of the immigration system. In my view, at least, the judgments in the Court of Appeal do not provide a sufficient explanation why this is not so and, indeed, open the possibility that it may be found that such interference is not justified.

18. Finally, “spousal autonomy” is no more than a term describing the fact that some family decisions are, at least presumptively, beyond the power of the State. But, the complex of rights protected by the enumerated personal rights deemed fundamental by the Constitution, and those which can be implied or derived from it, can equally be described as personal autonomy. The question is often, if not always, what is within that autonomy i.e. what is it for the person, or the family, to decide and control. It is obvious that there are significant limits to the area of autonomy – spousal or personal. A decision by spouses, or a family more broadly, does not have any impact upon whether a member of a family convicted of a crime should be imprisoned or for how long. Until now, the strong and almost unbroken trend of Irish authority was that spousal or family decisions could not control decisions as to who should be permitted to enter, or required to leave, the State. Repackaging the issue as spousal autonomy and describing it as a core constitutional value does not alter the issue or explain why that position has been or should be changed.

19. These are substantial questions, but if, notwithstanding all the difficulties with the approach raised, this was the only possible approach mandated by the Constitution then it would be necessary to accept it. It may be useful, therefore, to set out briefly at this point what I consider to be the correct position in the light of the Constitution in the decided cases.

 

IV. Some Preliminary Observations on the Place of Article 41 in the Constitution

20. The Constitution provides explicitly that Article 41 protects family rights which cannot be given away (inalienable) or lost by the passage of time (imprescriptible). The Constitution sees the Family as a collective body – a unit – and its benefit in functional terms: it is an essential institution providing stability for society. The essential protection afforded by the Constitution for a family is, therefore, the recognition of an area within which the institution of the Family, primarily and presumptively, is in control, and within which the State cannot interfere. That is what is meant by the guarantees of Article 41.1.2° to protect the Family in its constitution and authority. The State cannot normally compel additions to or subtractions from the Family as a unit. Nor can the State, normally, make decisions for the Family on what might be described, loosely, as family matters.

21. The rights guaranteed by Article 41.1.1° are therefore the correlative of the duties imposed upon the State by Article 41.1.2° to protect the Family in its constitution and authority: it is the right to establish a family unit and have an area within which the Family is in control. That area is not without both horizontal and vertical limits: first, the freedom of the Family, for example, within areas which might clearly be considered a family matter, such as decisions on the education of children, in the broadest sense, is not absolute. The Constitution expressly provides that the State may require basic standards of education. Similarly, there is a horizontal limit to what is within the authority of the Family. There are many things that a Family cannot decide or control. There may indeed be significant contention as to where both the vertical and horizontal boundaries lie in any given case, but the structure of the Constitution is clear: it protects an area within which the institution of the Family is primarily in control and which is generally free from government or State interference. Entry into the State or removal from it, however, has not, up until now, been considered to be within that protected zone.

 

V. Entry to, and Removal from, the State does affect Constitutional Rights and Interests

22. Immigration decisions may, however, impinge on a number of rights protected by the Constitution and, in particular, the Family. In this regard, there are at least two rights involved which are not enumerated in the Constitution’s text but may be deduced from it. First, the right of a citizen to live in Ireland is a fundamental attribute of citizenship. This conclusion may gain some additional force from the amended terms of Article 2 expressing the birthright of every person born on the island of Ireland to be part of the nation, but is not dependent upon that Article. It is, in essence, a right derived from the nature of citizenship: citizens who were not born on the island have the same right to reside here. Second, an individual personal right to marry is probably deducible from what is implied by the fundamental rights protections of the Constitution generally, but is put beyond doubt by the obligation on the State to guard with special care the institution of Marriage. Cohabitation is a normal and expected incident of marriage (and indeed family life) and, therefore, interference with it is to be scrutinised. For reasons I will address later, I do not agree that there is a separate unspecified right to cohabit (or to cohabit in Ireland or to decide to do so) protected by Article 41 (and therefore either inalienable and imprescriptible, or entitled to the very highest level of protection). If, however, there is a separate right to cohabit it is guaranteed by Article 40.3.1° of the Constitution and not by Article 41. It is clear, for example, that an unmarried couple must also have a similar right to cohabit with a partner of their choice with which the State cannot interfere. The right (if a separate right exists) is not dependent on marriage or to be deduced from Article 41. It is worth recalling that the majority of the Supreme Court in McGee v. The Attorney General [1974] IR 284 (“McGee”) found that a right of marital privacy was, nevertheless, protected by Article 40.3.1° rather than Article 41.

23. However, even if it is assumed there is a right to cohabit, and irrespective of where it is located in the Constitution, I do not agree that there is a right to cohabit in Ireland. Nor is the decision to cohabit in Ireland within the exclusive authority of the Family. It adds little except confusion, therefore, to speak of a right to decide to cohabit in Ireland. Even if there is a right, or such a decision is within the authority of the Family, then there is a clear difference between the decision and its implementation. A decision to refuse permission to enter, to deport, or to refuse to revoke deportation, does not interfere at all with the right to make a decision. This illustrates the fact that what is necessarily contended for by the respondents’ arguments is the right of an Irish citizen to cohabit in Ireland with his or her spouse.

24. A refusal to permit entry to the State (or a decision in relation to deportation) clearly affects the right of the citizen to reside in Ireland and will also affect the cohabitation of a couple and therefore their marriage, and the family created by it, but until now it has been established that the citizen’s right to reside, together with cohabitation (whether viewed as a right or an incident of marriage), does not amount to a right to reside in Ireland with a non-national spouse, although I would consider that in some cases it may come close. The interests involved are weighty, and in some straightforward cases, where there are no countervailing considerations of weight, I agree with the observations of Finlay Geoghegan and Fennelly JJ. that it may be said that a Minister could not reasonably make a decision refusing entry to a longstanding non-national spouse of an Irish citizen who wished to reside in Ireland if no other consideration was present.

25. It is important to emphasise that in disagreeing with the interpretation of Article 41 adopted by McKechnie J., following the approach of Hogan J., I nevertheless accept fully that a decision affecting the lives of a married couple in a fundamental way demands close scrutiny and requires justification under the Constitution. The Constitution protects the right to marry. The obligation to respect and guard with special care the institution of Marriage may operate at an institutional level, but it also has an impact at the level of an individual. An important part of the way in which the State shows its performance of its obligation to guard with special care the institution of Marriage is how it treats individual marriages. Therefore, when any decision is made which has a fundamental effect on a married couple, the decision-maker must normally take account of those matters. A decision which ignores the status of an individual as a married person would not be lawful and any decision which did not take account of that fact, or the impact on a married couple and the family of the decision, could properly be said to fail to respect the institution of Marriage which the State is obliged to guard with special care.

26. A Minister’s decision must, therefore, set out those matters and considerations which are considered to justify an outcome which may have that effect. This will, almost certainly, involve a consideration of the matters set out in the judgment of McKechnie J. and may, in most cases, lead to the same conclusion, but the exercise starts from a different point: in this case, the entitlement of the State to decide who should or should not be permitted to enter this country or reside here and without the preloading of the scales involved by characterising a right of cohabitation as worthy of the highest level of protection feasible in a modern society.

27. Any decision to deport a married person from a country where their spouse is entitled to reside, to refuse to allow a non-national spouse to enter the country of residence of the other spouse, or to refuse the revocation of a deportation order preventing the lawful entry to such a country, necessarily impinges upon the marriage and the family created thereby. Any such decision will require analysis by reference to any human rights instrument such as the Irish Constitution or the E.C.H.R. which, whether expressly or implicitly, protects a right to marriage, the institution of Marriage, and family life. However, I entirely agree that the analysis under both instruments cannot be blended to provide a single homogenous approach. Furthermore, I agree that the Minister’s decision in both cases, which appear to follow a standard template, appears to also treat the analysis by reference to the constitutional rights as if it was identical to, and perhaps derivative of, the E.C.H.R. analysis. While analysis by reference to the E.C.H.R. is always instructive, and while I would expect that analysis by reference to any instrument broadly guaranteeing rights in a liberal democracy would cover similar ground, there is no reason to treat the provisions as essentially interchangeable. Indeed, there are good reasons – relating to the language of the documents, their distinct histories, and the functions they perform – to approach the questions separately and distinctly. Accordingly, I agree that it is clear that the Minister addressed himself incorrectly to the constitutional rights and values involved and that the decision of the Minister should be quashed. However, the correct analysis is more difficult. The position, in my view, is rather more complex than simply viewing the E.C.H.R. as providing a lower but broader level of protection since it will cover both married and unmarried families, whereas the Constitution provides a higher but narrower level of protection limited only to marital families.

28. While the outcome in many cases would be the same whatever approach is taken, there is a risk of creating a default position where certain family rights are held to exist which must be overcome in any given case. The correct starting point, in my view, is the opposite. It is that a non-citizen does not have a right to reside in Ireland and does not acquire such a right by marriage to an Irish citizen.

29. The Constitution does protect the rights and interests of non-citizens in some, indeed many, respects (see, in this regard, the decision of this court in N.H.V. v. The Minister for Justice [2017] IESC 35, [2018] 1 IR 246). That does not mean, however, that the difference between citizenship and non-citizenship is not relevant in a number of important and, indeed, fundamental respects: the constitutional right to vote is perhaps the clearest example of a valid distinction between citizens and non-citizens recognised by the Constitution. One basic incident of citizenship is the right to reside in Ireland, even if that right is not absolute since the State can extradite an Irish citizen or surrender him or her to another country. But, a fundamental distinction between a citizen and non-citizen is that a citizen has the general right to reside here, the right to travel with the protection of the State, and with the benefit of its good offices, and to re-enter the country. A non-citizen has none of these rights. These are basic consequences of citizenship, nationality, and, ultimately, sovereignty.

30. Another essential feature of sovereignty, and which permits indeed the conferral of rights upon citizens, is the State’s capacity to maintain territorial integrity and control its own borders. Originally, indeed, that was a core function of the executive and one of the indicia of an independent sovereign state, which this country once sought so tenaciously to assert and establish in the early years of the State.

31. There is, therefore, a basic and unavoidable distinction between an Irish citizen and his or her non-citizen spouse; that distinction is that the Irish citizen has an a priori right to reside here, to form relationships, to be employed, to work and to pursue his or her life here, to participate in the democratic process as a voter or candidate and that a non-citizen does not. This basic distinction precedes questions of interference with family life or cohabitation and is the starting point for the analysis of any decision either to refuse entry to this country or to remove someone from it.

32. As already discussed, an Irish citizen has an undoubted right to marry even though that is not spelt out in express terms in the text of the Constitution. It is, perhaps, unnecessary for present purposes to identify the precise steps by which that right may be deduced from the constitutional text, but a constitution which requires a state to guard with special care the institution of Marriage necessarily implies a right on the part of its citizens to marry. That right, however, does not appear to be unqualified. In the period since the enactment of the Constitution, it does not appear to have been seriously doubted that the State may set out the requirements for a valid marriage in terms of celebration, witnesses, prior notification, and may set a limit on the age at which a person may marry. The law may limit the persons which the citizen may marry (a person cannot marry someone already married to another person, and cannot marry anyone else if already married). Prior to 2015, the law contained a prohibition on marrying a person of the same sex. The Thirty-fourth Amendment makes it clear that a person may only marry one person. Since 2014, at least, the law has sought to prevent a person from marrying for the purposes of acquiring the immigration advantage of free movement within the European Union.

33. The Constitution could have provided that a consequence of the marriage of an Irish citizen to a non-citizen/non-national was to give the non-citizen a right to reside in Ireland, to work here, and to participate in the community. Indeed, at one point, marriage by a woman to a male Irish citizen conferred a legal right to naturalisation: s. 8 of the Irish Nationality and Citizenship Act 1956. Plainly, however, the Constitution does not, itself, do so. Perhaps more precisely, the Constitution might have provided that the right of an Irish citizen to reside here carried with it a right to be joined by her or his spouse. Again, the Constitution does not do so expressly and it is clear that no such right is to be implied. This was held authoritatively in Pok Sun Shum v. Ireland [1986] I.L.R.M. 593, by Costello J. (as he then was), where a claim was made by an Irish spouse that her non-Irish husband could not be required to leave the country. Costello J. rejected this argument in a vivid passage of the judgment which has been accepted as stating the law ever since:-

“Mr Gaffney SC submitted on behalf of the plaintiffs that because of the very entrenched provisions of the family rights in the Constitution, that these could not be trenched upon, in any way, by the State and, in particular, by the Aliens’ Order. He went so far as to answer a question I put, to say that if an alien landed in the State on one day and married the next day to an Irish citizen in the State, the State was required, by the Constitution, to safeguard the rights which were given to the family, and these could not be taken away by the Aliens’ Act [1935, and, therefore, by a requirement to leave the State] … I cannot accept that view.”

This judgment and the judgment of Gannon J. in Osheku v. Ireland [1986] I.R. 733, to similar effect, have been repeatedly cited with approval by this Court: Laurentiu v. Minister for Justice [1999] 4 IR 26; P v. Minister for Justice, Equality and Law Reform [2002] 1 IR 164; and, perhaps most pertinently in the present context, A.O. & D.L. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1 (“A.O. & D.L.”).

34. For a number of reasons, therefore, I do not consider that the correct starting point is the identification of any right to cohabit, however characterised and valued, and where any interference with that right must be justified by a state interest whether described as compelling or not. There are obvious dangers in analysing an issue in terms of a hypothesised right (in this case, a right to cohabit with a spouse, or a right to cohabit with a spouse in Ireland, or to decide to cohabit with a spouse in Ireland) and which is in turn subject to limitations or simply being overridden by reference to considerations themselves not identified in the Constitution. Such an approach generates uncertainty, and therefore litigation, since the balance deemed correct can only be determined finally by a court with, moreover, the additional risk that the balance may fluctuate over time and between courts. Furthermore, if a general “right to cohabit” is the starting point, that blurs the important distinction of constitutional value just discussed and the distinction between a citizen and non-citizen.

35. There is a fundamental difference between any legislative provision which might, for example, prevent a person in Cork living with a spouse in Dublin and one which distinguishes between Irish citizens and non-citizens in relation to entry to the country. There is a further important distinction, which can too easily be overlooked, where it is alleged that a provision otherwise lawful and justifiable (for example, the exclusion from this country of a person who is illegally present here) is invalid because it indirectly affects a married couple and, consequently, a family. Finally, while I do not doubt that cohabitation is a normal incident of a marriage, and therefore has constitutional value, I respectfully doubt that it is correct to assert, at least without significant qualification and refinement, a right to cohabit in the abstract, still less such a right posited as a right entitled to the highest degree of protection possible in a modern society.

36. While I agree that the Irish Constitution places a significant, and indeed high, value on marriage and also the family thereby created, and that this is something which must necessarily be taken into account in considering the lawfulness of any governmental or state decision to refuse permission to enter and reside, or to refuse revocation of a deportation order, I respectfully agree with the observations of Finlay Geoghegan J. in the Court of Appeal that such a decision should properly be analysed by reference to the lawfulness of the ministerial or state decision rather than by hypothesising a right on the part of the spouses to reside together in Ireland unless any interference with that right can be justified.

37. I also respectfully disagree that the words of Article 41, and in particular the words “inalienable” and “imprescriptible”, should not be given their ordinary and natural meaning. This was first suggested by Hogan J. in J.G. & Ors. v. Judge Kevin Staunton & Ors. [2013] IEHC 533, [2014] I.R. 390, and repeated in his concurring judgment in this case, and accepted and endorsed by McKechnie J. at para. 134 of his judgment. Notwithstanding the considerable respect due to the source of this approach, I would not for myself be prepared to accept it, at least without much greater elaboration.

38. I note that Kelly: The Irish Constitution (5th ed., Bloomsbury Professional, 2018) (“5th edition of Kelly”) states at para. 7.7.50 that “[t]his is an interesting, possibly controversial, attempt to use the presumed intentions of the drafters to modify the literal interpretation of the Constitution”. I agree that the approach is novel and controversial. Furthermore, I see no reason to presume that the drafters of the Constitution generally, or those reputed to have particular involvement in the terms of Article 41, did not intend that the words “inalienable” or “inviolable” (where that word is used) did not have their natural meaning. As is well known, Article 41 reflects natural law thinking: most clearly when it refers to rights antecedent to positive law. In that thinking, as I understand it, such natural rights are normally considered to be inalienable in the sense that they cannot be given away (since they are inherent in man’s nature) and imprescriptible (in that they cannot be lost by passage of time, again for the same reason). There is every reason to think therefore that this was, indeed, the meaning the drafters intended. But, even if the principal drafters of the Constitution, or some of them, had their metaphorical fingers crossed behind their backs when Article 41 was drafted – which I doubt – I see no reason to assume that the people who adopted the Constitution shared any such view. Indeed, in 2012, when the Constitution was amended by the introduction of Article 42A (and the deletion of Article 42.5), the language of imprescriptibility was retained and, if anything, emphasised. Accordingly, I would proceed on the basis that these words are to be given their ordinary meaning and, therefore, that Article 41 protects certain rights which cannot be given away or lost by passage of time. The difficulty this language is capable of causing is illustrated in the case law, but that is not a reason to dilute the language chosen by the Constitution and the protection afforded by it. It is a reason to be cautious, however, about any approach which would extend, by judicial decision, the range of rights and interests entitled to the designation “inalienable and imprescriptible”.

39. Even if I considered that the words “inalienable and imprescriptible” were not to be given their ordinary meaning, I would not draw the conclusion that these undoubtedly impressive-sounding words mean that Article 41.1 contains and protects unspecified rights entitled, moreover, to the “highest possible level of legal protection which might realistically be afforded [to the protection of family life] in a modern society”. This approach leads inevitably to speculation as to a range of rights which may be protected by Article 41 and, just as inevitably, running the risk that these will be deemed incapable of being outweighed other than by extremely weighty or indeed, as it is expressed, compelling interests not, themselves, identified in the Constitution either. The resulting tangle of constitutional interests and values may lead to, at best, uncertainty and confusion.

 

VI. Article 41 in the Constitutional Structure

40. It is, I think, necessary to return to the precise words and structure of Article 41.1, set in the broader context of Articles 41 and 42 generally, and to attempt to discern what those Articles meant in 1937, mean today after amendment, and now require. This is not a simple task, since the quasi-theological language of the Articles is not easy to apply in any legal framework, but particularly so in a modern-day society quite different to that of 1937. Moreover, the two Articles have undergone four significant constitutional Amendments so that Article 41 now has a meaning which not only would not have been contemplated in 1937, but which in certain respects (for example the provision for divorce) can be said to be embody and enshrine the very thing sought to be precluded by the original version of Article 41. Furthermore, the interpretation of Article 41 today is not simply a case of taking account of the specific changes made in the respective Amendments. These Amendments, both individually and collectively, have an impact on the overall interpretation of the document, and Articles 41 and 42 in particular. To take a simple example, the provisions of Article 41.4 permitting the contracting of marriage by two persons without distinction of sex has an inevitable impact upon the interpretation of the Article 40.1 guarantee of equality as human persons while having, at the same time, established beyond any doubt that the institution of Marriage, which the State has pledged itself to guard with special care, is a union between two people only. As O’Malley J. observed in H.A.H. v. S.A.A. [2017] IESC 40, [2017] 1 I.R. 372 at para. 128, the combined effect of the Amendments in respect of divorce and same-sex marriage has “resulted in a legal institution of marriage that cannot be described in terms of traditional Christian doctrine”.

41. Nevertheless, it is helpful to consider the scope of Articles 41 and 42 as provided for in the 1937 version of the Constitution and then to consider the later Amendments. Not only has Article 41.1, in particular, remained unchanged throughout the period from 1937 to date, but the structural relationship which the Articles created, and particularly the respective positions of a married couple and a family vis-à-vis the State, were set in 1937 and remain fundamentally in place even if the definition and characteristics of Marriage, and consequently the Family, have altered and the position of children, and their rights, has been emphasised.

42. Article 41 in 1937 provided as follows:-

“1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

 

2 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

 

3 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

2° No law shall be enacted providing for the grant of dissolution of marriage.

3° No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.”

43. It is well known that this Article is one of the provisions of the Constitution which clearly shows the influence of natural law thinking. Nothing in the 1922 Constitution addressed the position of the Family specifically. As the 5th edition of Kelly points out at para. 7.7.01, however, Article 41 of Bunreacht na hÉireann was influenced in part by contemporary papal encyclicals, albeit also noting that a similar provision is to be found in the German constitution of 1919. Professor Oran Doyle has pointed persuasively to the influence of the then relatively recent 1930 papal encyclical Casti connubii (Of chaste marriage) (see: Doyle & Hickey Constitutional Law: Text and Materials (2nd ed., Clarus Press, 2019) at p. 473; and Doyle, “Family Autonomy and Children’s Best Interests: Ireland, Bentham, and the Natural Law”, (2010) 1 International Journal of the Jurisprudence of the Family 55). That contemporary natural law thinking which was reflected in the Article was strongly opposed to divorce, abortion, contraception, and to the-then popular practice of eugenics, but adopted a “render unto Caesar” approach in relation to the relationship between the Family and the State. The approach was to conceive of the Family as an institution, in this case a moral institution, with which the institution of the State could not readily interfere, at least within the area of authority of the Family.

44. Attention has tended to focus on the impressive, if unfamiliar-sounding language such as “inalienable”, “imprescriptible”, and “antecedent to positive law”. But, it is wrong, in my view at least, to stop at Article 41.1 as if it was a self-contained provision bequeathed by the People in 1937 to later generations of judges who could be trusted to identify a constellation of pre-eminent rights to be given superadded protection. That would make little sense. When Article 41 spoke of rights antecedent to positive law, they were not a mystery. Rather, what was intended was understood, at least in essence, by most interested observers.

45. A constitution may, as the 1937 Constitution does in these provisions, assert that the rights it protects and guarantees have always existed; but, fundamentally, it is the Constitution which identifies the rights it protects and their limits, which guarantees them, and gives them legal effect. The terms of the Constitution are, therefore, central. In T.F. v. Ireland [1995] 1 I.R. 321, Murphy J., at p. 333, refused to allow evidence to be called from theologians as to the natural moral law in respect of marriage:-

“It may well be that “marriage” as referred to in our Constitution derives from the Christian concept of marriage. However, whatever its origin, the obligations of the State and the rights of parties in relation to marriage are now contained in the Constitution and our laws …”

46. As Declan Costello, writing extra-judicially (“Natural Law, the Constitution and the Courts” in P. Lynch & J. Meenan, Essays in Memory of Alexis FitzGerald (Incorporated Law Society of Ireland, 1987), p. 105, at p. 107) from a position sympathetic to natural law thinking, nevertheless observed, the best guide to the natural rights recognised or protected by the Constitution are the terms of the Constitution itself and the rights it expressly protects. Article 41 is not a springboard to speculation as to the rights in respect of the Family, which future generations of judges might consider should be deemed worthy of protection in a modern society; it is a signpost directed to the terms of the Constitution itself and what they imply.

47. It is noteworthy that, in Article 41, the Family is capitalised (as is Society, the State and the Nation), emphasising that the Family is seen in institutional and functional terms. Article 41.1.2° follows directly from Article 41.1.1°. By it, the State guarantees to protect the Family in “its constitution and authority”. It is important not to overlook the word “therefore”. The guarantee to protect the Family in its constitution and authority is seen as a logical consequence of the recognition of the Family as a moral institution possessing inalienable and imprescriptible rights and, moreover, the natural primary and fundamental unit group in Society. It is basic to the functioning of such an institution that its constitution must be protected and guaranteed. The protection of the Family in its authority is seen as essential if it is to perform its function as the fundamental unit-group of society. As Costello J. (as he then was) put it at p. 626 of P.H. v. John Murphy and Sons [1987] I.R. 621 (“P.H. v. Murphy”), the rights, therefore, which the Family as an institution possesses, are those which can be said to be within the authority of the Family so constituted, and the correlative, therefore, of the duties imposed on the State by Article 41.1.2° to protect the Family in its constitution and authority and which “can be ascertained by reference to those duties”.

48. It follows that the Family is seen both as a unit and an institution and that its merit is the stability that it provides to Society. Article 41.2 contains a provision, always controversial and now currently under debate, recognising the support given by a woman by her life within the home. This rarely invoked provision may, however, cast some useful light in the present context since it emphasises the operation of the Family with the domestic setting. The Constitutional Family creates a unit, and the corollary is that within its area of authority it will have control. The more, however, that the question can be said to relate to the public, rather than the personal, the less it can be said to be within the authority of the Family to the exclusion of the State.

49. It seems clear that the pledge to protect the Family “in its constitution” was closely linked to the initial prohibition on divorce and by the subsequent provisions regulating the availability of that relief, since divorce was the most obvious way in which the constitution of a family is altered. That is not to say that the protection of the constitution of the Family is limited to the prohibition of, or more latterly the restrictions upon, divorce, but it does suggest that when considering the meaning and effect to be given to the term it is useful to consider what, unambiguously, was understood to be captured by it. In addition, the State cannot dictate the number of children in a family or, conversely, require a couple to have children at all. It required express Constitutional authority, originally in Article 42.5 and latterly in Article 42A, to permit adoption of children of a married couple. These are all issues going to what constitutes a Family. However, I do not see that a right to cohabit in Ireland can be deduced from the Constitutional obligation to protect the Family in its constitution. Cohabitation relates to the type of married, and therefore family, life an individual couple may have, and not to whether they are married or constitute a family.

50. What the Constitution envisages by “the authority” of the Family is illustrated by the terms of Article 42. The initial sentence of Article 42 echoes the terms of Article 41 in recognising the Family as the natural primary and fundamental unit-group in society. Article 42 acknowledges, therefore, that the Family is the primary and natural educator of the child. Significantly, in this regard, the Constitution moves, for the first time, from the collective rights of the family unit to a more specific level. It recognises, in this regard, the rights and duties of parents to provide for the religious, moral, intellectual, physical, and social education of children.

51. Article 42 is useful, therefore, in understanding the delineation the Constitution sees between the role of the Family and that of the State. It is very clear that decisions in relation to education, for example, both in the strict scholastic sense, such as what school to go to or, indeed, whether children should receive education in a formal school setting, are, broadly speaking, for parents within the family. It is also clear that education in Article 42 comprehends most decisions involved in the upbringing of children and young people. Thus, and in general, families are entitled to sort out in their own way, and make their own decisions as to: how property will be held within the family (In Re.: Art 26 and the Matrimonial Homes Bill 1993 [1994] 1 I.R. 305); how tasks will be allocated between spouses; whether both spouses will work or only one, and if so which, and whether full-time or part-time; how children will grow up and, in that regard, can make decisions which society more generally may consider foolish about, for example, the length of a child’s hair, the time at which they may go to bed, whether they should drink alcohol at home, whether and when they should learn to ride a bicycle, what time to come home at, and even whether a child should avail of standard health screening procedures (North Western Health Board v. H.W. [2001] 3 IR 622); and the State is obliged to protect the Family’s authority in that regard unless and until the separate rights of the children are jeopardised.

52. It is not necessary, or perhaps even helpful, to attempt to comprehensively define what falls within the scope of the Family’s authority or the precise point at which the State must or may interfere even within those areas in which the Family has prima facie authority. Broadly speaking, it extends not merely to what is done or decided within the home, but also what might be termed home/life decisions. It is, however, absolutely clear that the corollary of there being an area of life, at least presumptively, within the authority of the Family is that there are a range of matters that are outside the realm, on any view, of the Constitutional protection for the authority of the Family even if the subject of conscientious family decisions taken by the family in the heart of the home, and even if relating to an activity taking place in the home. Examples of issues which until now at least have not been considered to come within the Family’s authority to permit are matters such as incest within the home, even between persons over the age of general consent (although this has been the subject of some debate) or the use and/or possession of drugs whether in a public place or in the home. A child cannot be served alcohol in licensed premises even if it is the conscientious desire of the child’s parents, cannot drive a motor vehicle on a public road, and membership of an illegal organisation does not become lawful, or even less culpable, simply because it is the consequence of a family decision taken, even in the heart of a home. Possession of firearms is not permissible even if kept in the home within the marital bedroom and only used by members of the family on their private property, and no special procedure is necessary before a warrant is issued to enter and search a family home or any area in it. At a more prosaic level, it has been established that a family’s conscientious decision that fluoride in the water supply is dangerous does not override, or even restrict, the State’s contrary view. In Ryan v. A.G. [1965] IR 294, Kenny J. dismissed the argument that the addition of fluoride affected the authority of the Family to decide what drink and food the family should consume. Anticipating the approach of Costello J. (as he then was) in P.H. v. Murphy, Kenny J. considered that some clue to the ambit of the rights of the Family referred to in Article 41.1 is to be found in the subsequent reference to the guarantee by the State to protect the Family in its constitution and authority. Legislation dealing with food and drink did not, in any way, affect the authority of the Family and was, therefore, not an interference with the rights guaranteed to the Family by Article 41. In the Supreme Court, Ó Dálaigh C.J. came to the same conclusion; there was nothing, he considered, in the legislation permitting fluoridation that could be said to be a “violation of the guarantee on the part of the State to protect the family in its constitution and authority”.

53. That this is so is not, at least in my view, because the Family or any derived family rights are outweighed by some compelling State interest. It is rather that there are significant areas of activities that are not within the authority of the institution of the Family and where the State is not obliged to defer to the Family’s decision. Such activities are not within the authority of the institution of the Family but, rather, within the authority of the institution that is the State. There are certain constraints imposed upon persons and individuals irrespective of their marital status and which follow from the obligations any individual in society, whether a citizen or not, owes to that society. This is all perhaps an unduly prolix way of attempting to say something said succinctly by Hardiman J. in A.O. & D.L. at p. 159: the decision on education or a child’s medical treatment is prima facie within the Family’s authority but “[a] decision about an alien parent’s desire to live in the State is not”.

54. In seeking to emphasise this distinction, I recognise that there is room for considerable debate as to the matters which may properly be considered to be within the Family’s authority and the precise extent to which the State may interfere with matters falling within that area of prima facie Family authority. The landmark case of McGee is noteworthy for many reasons, but one of its most important achievements was the recognition that a form of regulation of what was seen in 1937 as public activity (the importation of certain items) with a consequential impact on private activity, which would have been understood by the devotees of the encyclical Casti connubii as supportive of the institution of Marriage, was recognised as an impermissible interference with a decision and behaviour which was properly within the scope of marital and family and, ultimately, personal life decisions. McGee proceeds from the basic proposition that there was an area of family decision making (and actions pursuant to that decision) that was beyond the State’s control or – to adopt the well-known language of the Wolfenden Report – there is an area which, in brief and crude terms, was not (generally) the State’s business. The Irish Constitution goes further, it might be said: there is an area which is, rather, the Family’s business and the State’s obligation to ensure that it was so. Until now, entry to the State and deportation from it has not been regarded as a matter within the Family’s authority. It is said, however, that even so, a decision to deport a married person trenches not just upon Marriage, but more specifically upon an unspecified right to cohabit, or to decide to cohabit, and indeed removes such a right altogether.

 

VII. A Right to Cohabit

55. Cohabitation is seen as basic and almost intrinsic to a marriage. A married couple’s decision as to when, where, and how to cohabit seems, peculiarly, a matter for them alone. In today’s world, a decision made by two people to live together is understood as a significant point in a couple’s relationship. It is easy, thus, to speak of a right to cohabitation, consequently requiring a compelling State interest before the State may do anything which interferes with it. This tendency is perhaps easier again because cohabitation was traditionally spoken of in relation to the common law in relation to Marriage, as both key evidence of a marriage where that was disputed, and a right owed by each spouse to the other. It seems, therefore, a natural progression to speak of a constitutional right to cohabitation.

56. However, I am reluctant to start from the proposition that the Constitution, either in Article 41.1 or, more plausibly, Article 40.3, protects a right to cohabitation. Cohabitation at common law was not seen as a right, still less a right enforceable against the State, but rather as a duty and one operating in private law between the spouses. At common law, as I understand it, one of the consequences of marriage, at least as traditionally understood in law, was that the spouses were under a duty of cohabitation: an obligation from which a spouse could only be released by the decree of divorce a mensa et thoro. This distinction is important. As Costello J. (as he then was) observed in P.H. v. Murphy, the primary purpose of a constitution guaranteeing fundamental rights is to protect those rights from unjust laws enacted by the legislature and arbitrary acts of State officials. It is not, primarily at least, addressed to the private law rights of individuals between each other. We should be careful, therefore, in using the archaic language of private marital duties in a way which leads us to slide unconsciously across the private law/public law divide and find a new right to cohabitation enforceable against the State.

57. If there is such a freestanding right then it is one that has not received significant weight, at least to date. There are many reasons, apart from their own decision, why a couple may not be able to cohabit when or where they wish, and until now it has not been thought that this implies any default on the part of the State. In The State (Gallagher) v. Governor of Portlaoise Prison [1987] I.L.R.M. 45, Lynch J. held that the State was entitled to restrict the constitutional rights of a family by imprisoning one of its members on the grounds that such a restriction was clearly envisaged by Article 38. In McElhinney v. Commissioner of An Garda Siochána (Unreported, High Court: Geoghegan J., 10th of May, 1995), Geoghegan J. held that family reasons could not be invoked to defeat or limit the power of the Commissioner to transfer members of the force to any part of the country. In Minister for Justice, Equality and Law Reform v. Gheorge [2009] IESC 76 (Unreported, Supreme Court, 18th of November, 2009), Fennelly J. rejected the proposition that surrender under a European Arrest Warrant was to be refused where a person would, as a consequence, “[suffer] disruption, even severe disruption of family relationships”. In the context of immigration, Hogan J. held that the arrest of a non-national for immigration purposes as she was about to marry was not unlawful because marriage to an Irish citizen did not confer a presumptive right to remain in the country.

58. It is necessary, however, to consider the case law where a right to cohabit has been referred to in those terms, the most important of which is perhaps Murray v. Ireland [1991] I.L.R.M. 465 (“Murray”) where Finlay C.J. (with whom Hamilton P. and O’Flaherty and Keane JJ. agreed) accepted that:-

“[the] fact that the Constitution so clearly protects the institution of marriage necessarily involves a constitutional protection of certain marital rights. They include the right of cohabitation; the right to take responsibility for and actively participate in the education of any children born of the marriage; the right to beget children or further children of the marriage; and the right of privacy within the marriage: privacy of communication and association”.

59. This statement, though plainly obiter, is worthy of great respect. I do not think, however, that it can be taken as definitively establishing any such rights. A number of observations may be made. Although the language might tend to suggest that these rights were protected by Article 41 (since the rights posited are said to follow from the institution of Marriage guaranteed by that Article), Finlay C.J. expressed his complete agreement with Costello J. (as he then was) in the High Court. Both Costello J. in the High Court and McCarthy J. in the Supreme Court were clear that any such right was protected by Article 40.3, with McCarthy J. observing that the plaintiffs had not maintained the case in the Supreme Court that these rights were protected by Article 41. Little turned on this in the particular case and the other members of the court agreed with both judgments. Furthermore, the plaintiffs’ claim failed and, therefore, the precise approach to the analysis is not central to the reasoning in the case, and does not appear to have been the subject of any detailed argument. However little it may lead to a difference in outcome, I am reluctant to follow the approach of hypothesising a series of rights and suggest they are protected by Article 41, particularly if a consequence is that they become inalienable, imprescriptible, indefeasible, or entitled to the highest level of protection which might realistically be afforded in a modern society, and do not consider that the language of Murray requires me to do so.

60. The list does include matters which it might instinctively be felt are, or should be, protected by the Constitution. However, the “right” to participate in and take responsibility for children’s education is already expressed as a duty by Article 42.1 and the “right to procreate” is clearly not limited to married couples. It is clear that marital privacy, as recognised in McGee, is protected by Article 40.3.

61. Furthermore, without in any way devaluing the constitutional significance of what is involved, or suggesting any lower level of protection in fact for the values concerned, it may be better to conceive of these matters other than as rights, however characterised, giving rise to correlative duties. If, for example, there is a personal (or even marital) right to procreate, then questions arise as to the State’s obligation to defend and, so far as practicable vindicate, that right. Is, for example, the State obliged to provide any fertility treatment without regard, perhaps, to the age of the person or the cost if a person cannot afford the treatment? It may be easier to conceive of these matters as decisions within a sphere of life, either marital or personal, with which the State cannot, or cannot readily, interfere, both because in the case of a married couple this is a matter peculiarly within the authority of their family unit and in the case of individual because it is a vital part of the human personality which the Constitution protects.

62. I do not consider, therefore, that I am required to approach this case through the prism of a constitutionally protected right to cohabit, still less one said to be protected by Article 41.1. The judgment of McKechnie J. would appear to be the first time this court would hold that there is a general right to cohabitation protected by Article 41 with all that such entails. For the reasons set out above, I do not agree. Cohabitation by a married couple, and indeed by any couple in a committed and enduring relationship is, however, something the State is required to have regard to in its decision making and to respect.

 

VIII. The Significance of Marriage

63. The Constitution, in Article 41.3, requires the State to guard with special care the institution of Marriage. The same provision describes the Family as being founded on Marriage. There is, I think, a useful comparison with Article 43 which also acknowledges the natural right “antecedent to positive law” to hold private property and requires the State to not attempt to abolish the right of private ownership or the general right to transfer, bequeath, or inherit property. In both cases, the value is seen as general and institutional. The principal focus of the Constitution is to protect the institution of Marriage generally rather than individual marriages.

64. However, it seems clear that decisions in respect of individual married persons can, particularly if representing a settled practice or policy on the part of the State, be said to be capable of failing to respect the institution of Marriage and even, in some cases, to constitute an unjust attack on the institution of Marriage. There is no doubt, therefore, that the State is obliged to recognise and value the fact of marriage when it takes a decision that directly affects one party to the marriage.

65. Marriage is one of the few, and certainly the most enduring, examples of a status in law and one noted exception to Sir Henry Maine’s famous observation that the development of law had been a shift from status to contract (“Ancient Law” with introduction by F.E. Pollock (New ed., Murray, London, 1930), pp. 190-191). Certain legal consequences follow from the acquisition of a status. Some of the case law in this area is distinguished between marriages, contrasting at one extreme the couple marrying on a whim in Las Vegas and repenting equally quickly with, perhaps, a lengthy happy marriage blessed with children. It is obvious that these two cases are different and may be treated differently, but not, in my view, by reference to their status as married couples. The Constitution does not conceive of different categories of marriage with some which are “better” marriages or with more claims on the State. Assuming for the moment that the Las Vegas couple can be validly married by the law of Nevada, and that such a marriage is entitled to recognition in Irish law (which I do not think is in fact the case), then once two persons get married validly they acquire the status of a married couple and the legal consequences that flow from it, perhaps most notably that the marriage cannot be dissolved in Ireland without a court order and a determination that the court is satisfied that proper provision has been made for the spouses and any children. It is, I think, consistent with respect for the institution of Marriage that the fact of marriage should be given the same weight whatever the length or circumstances of any individual marriage. However, since it is the fact that it is a status that can be voluntarily chosen and, subject to the constraints of the law, dissolved, the law must consider more carefully the consequences of such a marriage. The State is not obliged by the requirement to protect the institution of Marriage to accord any automatic immigration status consequent on a marriage. Indeed, it might be said to be inconsistent with the State’s obligation to guard with special care the institution if it were otherwise, since the respect for the institution would be significantly reduced if it could be entered into to achieve immigration status and, perhaps, dissolved soon after. Such marriages would, moreover, not assist in achieving the object the Constitution envisages of providing a stable unit for society.

66. This is not to say that the length and duration of a relationship is irrelevant. It is, however, weighed under that heading: that is, an enduring relationship of considerable duration rather than that of marriage. There is a lawyer’s tendency to attempt to reduce the law to clear-cut rules and shorthand phrases. In this field, one example is the development of the concept of the “marital family” contrasted with the “non-marital family”. The position is, however, at least in my view, less clear-cut. Other than in Article 41.3 itself, Articles 41 and 42, the two concerned with the treating of the Family, do not differentiate between the marital status of the couple involved or the families that are thereby created. To take one example, parents who are not married are, as I understand it, just as free to provide education in their homes or in private schools as married couples are and cannot be obliged by the State, in violation of their conscience, to send their children to schools established by the State or to any particular school designated by the State. Whatever else may be said about Article 41.2, it has not been suggested that the “woman” and “mother” contemplated in those provisions is limited to a married woman even if that was overwhelmingly the model in existence when the Constitution was drafted. It was recognised by Gavan Duffy P. as long ago as 1946 that children had the same rights under the Articles, whether marital or non-marital: Re M. (an Infant) [1946] I.R. 334.

67. It is not difficult to see that an intimate relationship of some permanence where the two people treat themselves, and are recognised by others, as a unit in addition to their standing as individuals is something of constitutional value. Such a unit may, if sufficiently durable, be capable of providing the basis of social order indispensable to the welfare of the nation and the State. It would be wrong and inconsistent with the social order envisaged by the Constitution to disregard it or to treat that unit as being of no value because it was not founded on Marriage. The unfamiliar language of Articles 41 and 42 of the Constitution (and perhaps, as importantly, the somewhat fusty language with which they have become encrusted through repetition in judgments and textbooks over many years) should not distract us from the obvious fact that a basic part of the human personality that is at the core of the protection of the Constitution is the ability to associate with others to form relationships, and particularly close intimate relationships of mutual benefit and support, which, in turn, create stable units which provide a benefit to society.

68. It follows that decisions of the State having an impact on such relationships engage the Constitution. The length and durability of a relationship formed by persons (whether married or not) is something that must be valued and respected by a state which guarantees to protect individuals as human persons. It is not necessary for the exaltation of Marriage that other pair-bonding nurturing relationships be humbled, still less ignored. It is, however, unnecessary to discuss this matter in both the cases under appeal; the parties were married and it is the fact of marriage which has been relied on in these proceedings.

69. It is possible to return to the series of situations posited earlier in this judgment by reference to examples drawn from the case law and suggest that they should be approached, as Finlay Geoghegan J. suggested in the Court of Appeal, by considering the lawfulness of the ministerial decision in each case rather than by a generalised balancing approach positing rights of cohabitation and other rights derived from the status of marriage which require to be outweighed. The fundamental question is whether, where a couple is married, the ministerial decision can be said to have failed to recognise the relationship, or to respect the institution of Marriage because of its treatment of the couple concerned.

70. It seems clear that the fact of marriage alone to an Irish citizen does not create an automatic right to enter the State or to continue to reside here having entered illegally or after lawful entry but where any permission has expired. It is not per se a failure to respect the institution of Marriage to do so. There may be legitimate considerations of immigration, with added consequences for the rights of free movement in other E.U. Member States, which are not simply trumped by the fact of marriage.

71. It follows, however, that if the couple can add to the fact of marriage the evidence of an enduring relationship that if the State were to refuse the non-citizen party entry to the State for no good reason, and simply because it was a prerogative of the State, it could be said that such an approach failed to respect the rights of those involved and, in particular, the institution of Marriage. In that respect, I fully agree with the observation of Fennelly J., as slightly reframed by Finlay Geoghegan J. in the Court of Appeal, that – unless there was some other consideration in play – it would be difficult to envisage a valid decision refusing entry to the State to the long-term spouse of an Irish citizen seeking to return to Ireland to live. Indeed, I would consider that the same could be said of a long-term partner in an established non-marital family with an Irish citizen partner. Nevertheless, the starting point is that citizenship of one spouse plus marriage plus prospective interference with cohabitation does not equal a right of entry to a non-national spouse or give the Irish citizen spouse an automatic right to the company of their spouse in Ireland although, as discussed above, any refusal of entry would require clear and persuasive justification.

72. A different situation arises if the State’s refusal is based not simply on the fact of immigration control, but because of the immigration history of the non-Irish spouse and, in particular, if a deportation order has been made and been evaded before the marriage was entered into. Refusal to revoke the deportation order would not normally amount to a failure to vindicate the right to marry, or to respect the marriage itself or the area within the authority of the marriage, or the institution of Marriage. However, the length and duration of the relationship may become relevant – particularly if the relationship has endured abroad and the deportation order was a considerable time in the past.

73. More difficult again is the type of situation which might be said to present itself in the facts of the Gorry case. It may be said, in some cases, that the provision refusing entry may have the effect of preventing a married couple from cohabiting since Ireland is the only country where that can, as a matter of law or fact, occur and is, moreover, the home of one of the parties. There may be many reasons why a couple may not be able to cohabit, or to do so as, or where, they may like, and that may be a consequence of the marriage they have made. The parties remain married and it does not fail to respect that institution or protect it if cohabitation is made more difficult, or even impossible, by a decision of the State for a good reason. Imprisonment of one partner is one obvious example.

74. Nevertheless, in the context of immigration, when it is asserted on credible evidence that the consequences of a decision is that the exercise of a citizen’s right to reside in Ireland will mean not just inability to cohabit in Ireland with a spouse to whom that person is validly married and where, moreover, it may be extremely burdensome to reside together anywhere else, it would fail to have regard to and respect for the institution of Marriage not to take those facts into account and give them substantial weight. This may, firstly, involve a more intensive consideration of the facts and evidence. The length and durability of the relationship may also be a factor since it tends to remove the possibility that the marriage is one directed in whole or in part to achieving an immigration benefit, and at the same time reduces the risk that any permission will establish a route to circumvent immigration control. There may come a point where the evidence of medical or other conditions establishes that it is impossible to cohabit anywhere but Ireland, that the marriage is an enduring relationship, and that the non-citizen spouse poses no other risk, and where it can be said that failure to revoke the deportation order would fail to vindicate the right to marry and establish a family life. Such cases will be rare. A refusal to revoke a deportation order, after appropriate consideration of the facts and circumstances, is not invalid merely because it affects the spouses’ desire to cohabit in Ireland and it would be more difficult and burdensome to live together in another country. It is, however, important to recall that the Minister retains a discretion to revoke the order on humanitarian considerations, even if revocation is not compelled by the Constitution or the E.C.H.R. Furthermore, any decision is subject to judicial review.

75. In making a decision on an application for revocation of a validly made deportation order on the grounds of subsequent marriage the Minister is not, in my view, required to do so on the basis that Article 41 protects an inalienable, imprescriptible, or indefeasible right to cohabitation of a married couple which is entitled to the highest level of protection available in a democratic society. Rather, Article 41 protects a zone of family life and matters. Decisions on immigration and deportation are not matters within the authority of the Family. The Minister is, however, required to have regard in an such case to:

(a) The right of an Irish citizen to reside in Ireland;

(b) The right of an Irish citizen to marry and found a family;

(c) The obligation on the State to guard with special care the institution of Marriage;

(d) The fact that cohabitation – the capacity to live together – is a natural incident of marriage and the Family and that deportation will prevent cohabitation in Ireland and may make it difficult, burdensome, or even impossible anywhere else for so long as the deportation order remains in place.

76. It is apparent that this approach shares a number of features with the test which McKechnie J. would apply, following the judgment of Finlay Geoghegan J. and set out at paragraph 10 above. I would expect that the adoption of either approach would reach the same result in most cases, and a decision must be scrutinised by reference to the considerations addressed rather than the use of any particular form of language. It follows that a decision will not necessarily breach any rights if it did not anticipate this precise formulation or use the same language. I agree with McKechnie J. that it is not necessary to address the issue of Constitutional and E.C.H.R. rights in any particular sequence. The main point of difference between us relates to the analysis of Article 41 more generally and whether it protects a complex of unenumerated rights which may have application in areas other than deportation.

77. It follows from the foregoing that the test under the E.C.H.R. should not be applied in the consideration of issues arising under the Constitution. While the Constitution and the E.C.H.R. together provide extensive overlapping protection for families and marriage, it is necessary to recognise the different contexts. This is not, at least in my view, particularly because of an elevated position accorded to Marriage in the Irish Constitution; Article 12 of the E.C.H.R. expressly protects the right of individuals to marry and found a family, and it is difficult to see in what way this differs significantly from what is to be deduced from Article 41.3. It is, perhaps, because of the Constitution’s emphasis on the Family and also because the Constitution is a national constitution and, therefore, the right of a citizen to reside in his or her own country is of particular weight. The fact that a couple may be able to live together somewhere else does not neutralise that consideration. Even, however, when considering the matter from the perspective of the rights under the E.C.H.R., I have some reservations about reducing the formulation of Lord Phillips of Worth Matravers M.R. (as he then was) in R. (Mahmood) v. Home Secretary [2001] 1 WLR 840 to a binary choice where, if the family can live together in the State of origin, there will be no breach of Article 8, but if it is unreasonable to expect the family to do so, Article 8 would be breached by enforcement of deportation or, conceivably, refusal to revoke a deportation order. As is clear from the terms in which it is expressed, the guidance given is general, and any decision will depend upon a number of factors such as whether the family can be said to be long-established in the state, whether the marriage was entered into after a deportation order was made and in the knowledge of it, and the circumstances giving rise to deportation which, as Lord Phillips observed, may also involve a consideration of the circumstances prevailing in the state seeking to deport. For example, if a person entered a state illegally and was considered on reasonable grounds to pose a threat to the safety of persons in that state, and marries before a deportation order could be enforced, deportation would not necessarily breach any Article 8 rights even though it might be unreasonable to expect the spouse to accompany that person, perhaps because of reasons relating to their own health. The issue cannot be reduced solely to the reasonableness of expecting the spouse to relocate even though that is clearly a significant factor; the assessment must be made on all the facts of the case and the circumstances prevailing. These considerations do not directly arise in either of these cases, however.

78. For the reasons set out I agree that the appeals should be dismissed.

 

Result: Dismiss Appeal

Seredych & ors v The Minister for Justice and Equality

(Approved) [2018] IEHC 187 (22 March 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 187JUDICIAL REVIEW[2018 No. 132 J.R.]BETWEENIVAN SEREDYCH, JOVITA KALPOKIENE-SEREDYCH, ANDRII SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIENDJOVITA KALPOKIENE-SEREDYCH) AND MARKO SEREDYCH (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND JOVITAKALPOKIENE-SEREDYCH)APPLICANTSANDTHE MINISTER FOR JUSTICE AND EQUALITYRESPONDENTJUDGMENT of Mr. Justice Richard Humphreys delivered on the 22nd day of March, 20181. The first named applicant is a national of the Ukraine, born in 1973. He arrived in Ireland in May, 2001 and was granted residencyas the father of an Irish citizen child born to the first named applicant and his first wife in 2001. In the same year he committedcertain road traffic offences, including driving without insurance, for which was convicted in July, 2002. He was granted permission toreside in the State on 27th April, 2005. He commenced work as a taxi driver in 2006. In that year he divorced his first wife, and in thesame year or the following year he met and began cohabitation with the second named applicant, who was a Lithuanian citizen and isnow a naturalised Irish citizen since 2014. She had three children from a previous relationship.2. In June, 2012 the first named applicant committed the offence of sexual assault while in the course of acting as a taxi driver. Thecircumstances are described in the judgment of Birmingham J. at paras. 3 to 7 of his judgment in the criminal appeal (D.P.P. v.Seredych [2016] IECA 415 (Unreported, Court of Appeal, 3rd November, 2016)), as follows:“3. On 9th/10th June 2012 the complainant who was living in Cavan at the time was in Dublin. When she was socialisingin Dublin she travelled in order to attend a 21st birthday party which was taking place in Clontarf Castle. After theevents there a number of those who were at the party made their way to the city centre and in particular to theTemple Bar area in the early hours of the morning perhaps around 3 am she became separated from her friends, itmight be said that she has always acknowledged that she had consumed alcohol on the occasion at a number ofdifferent locations. She had said ‘I wasn’t too bad, I wasn’t falling around the place like, I can quite remember whathappened, I can quite remembered what happened, the events that happened so I wasn’t very drunk’.4. Separated from her friends, the injured party decided to walk to McDonalds in O’Connell Street, where she hoped thatshe might meet up with some of them. She made her way across the Millennium Bridge and walked in the direction ofO’Connell Street, she was feeling ‘vulnerable’, that is her word, and was visibly upset and was crying. At one stage atleast she was shouting for her friends.5. On the North Quays a taxi pulled over. The driver told her to stop crying and he offered to take her home. She toldhim that she was going to Donaghmede and she got into the car, sitting in the front passenger seat. According to thecomplainant very shortly into the journey, he put his hand on her thigh. She remonstrated with him in Polish thinkingthat that was his nationality and that Polish was his language. In fact the taxi driver was Ukrainian. The injured party hadsome colloquial Polish as a Polish lodger had stayed with her family or with friends at some stage. He asked her had shea boyfriend, while all the time keeping his hands on her thigh. He then proceeded to move his hand further up under herunderwear and touched her on the vagina. The injured party at the time was wearing a short gold party dress.6. According to the complainant, when the taxi reached the seafront road in Clontarf, the driver pulled into a car parkand he asked her if she would like to kiss. At this stage the complainant took out her phone and took down his name andbadge numbers from the identification documents which were on the dashboard of the taxi while pretending to beengaged in texting a friend. The driver drove out of the car park and she directed him to drop her in Raheny where sheknew that there was a garda station.7. Again according to the complainant on the way there, he kept touching her vagina before exposing his penis takingher hand and placing it on his penis. She pulled her hand away and then when they arrived in the vicinity of Rahenygarda station, she got out of the car and the driver did not make a request for payment.”3. In July, 2015 the first and second named applicants had their first child. On 23rd September, 2015 the couple married. InNovember, 2015 the first named applicant was convicted of the offence of sexual assault, after contesting his guilt at the trial byattacking the accuracy of the evidence of the complainant, which of course he is entitled to do. Following the conviction, he wassentenced to three years’ imprisonment.4. On 8th June, 2016 the first named applicant’s latest permission to be in the State expired. On 28th July, 2016 the first and secondnamed applicants had their second child. The first named applicant applied for renewal of his permission to remain and on 14th July,2016 the Minister indicated an intention not to renew the permission and invited submissions. On 8th August, 2016 the first namedapplicant submitted a document which is relied on on his behalf which concludes “with your permission dear sir or madame I want tosay that I am really sorry for this situation”. Reliance is implausibly placed on this as an expression of remorse but it rather seems tome to be a somewhat self-pitying statement that he is merely sorry for the situation. It does not even remotely reach the foothills ofamounting to remorse for his offending behaviour, especially situated in the context of having contested his guilt at all stages up toand including an appeal against conviction, as he is entitled to do.5. On 28th August, 2016, representations were made on behalf of the first named applicant and on 5th September, 2016, a proposalto deport was issued by the Minister. On 16th September, 2016 representations were made as to why a deportation order should notbe made. On 3rd November, 2016, the Court of Appeal handed down a decision rejecting his appeal against conviction. A deportationorder was made on 8th February, 2018.Page 2 ⇓6. Leave to issue the present proceedings challenging that deportation order was granted by Barrett J. on 15th February, 2018. On16th February, 2018 the first named applicant was released from custody.7. I have heard helpful submissions from Mr. Michael Lynn S.C. (with Mr. Anthony Lowry B.L.) for the applicants and from Ms. SiobhánStack S.C. (with Mr. John P. Gallagher B.L.) for the respondent.Was there lawful consideration of the constitutional rights of the applicants?8. Mr. Lynn relies on the Court of Appeal decision in Gorry v. Minister for Justice and Equality [2017] IECA 282 (Unreported, Court ofAppeal, 27th October, 2017) where the Minister failed to identify the constitutional rights involved and erred by assimilating theconstitutional obligations with those under art. 8 of the ECHR, as applied by the European Convention on Human Rights Act 2003.However, in the present case the Minister did identify the constitutional rights involved, so that point does not arise. Given that thoserights are identified, it cannot be said that there is an unlawful assimilation of the issues. Indeed, as Denham J., as she then was, saidin Oguekwe v. Minister for Justice, Equality and Law Reform [2008] IESC 25 [2008] 3 IR 795 at 823: “These rights overlap to someextent and may be considered together with the constitutional rights.” That statement does not seem to have been specificallydrawn to the attention of the Court of Appeal in Gorry, but sheds further light on the fact that there does not need to be an absolutewatertight separation between consideration of the different strands of family rights involved. The analysis notes that neither theconstitutional nor the Convention rights are absolute, and that is an example of what I mean by a lack of a need for a watertightseparation, because it is clear that that point made by the Minister is correct both as to constitutional and Convention rights and assuch is unimpeachable (see A.O. v. Minister for Justice, Equality and Law Reform [2003] 1 I.R. 1).9. A further point was hinted at that the decision was invalid because it did not deal with the Constitution first and the ECHR second.Mr. Lynn’s formal submission, however, was that as the points were allegedly improperly assimilated this issue did not particularlyarise. Hogan J. in Gorry seemed to draw the principle that the Constitution should be dealt with first from Carmody v. Ireland[2009] IESC 71 [2010] 1 IR 635 that a declaration of incompatibility does not arise until after consideration of constitutional rights. That isso not because of an overarching peremptory requirement that the Constitution must always be considered in any and every contextbefore the ECHR, but because Carmody was dealing with an interpretation of a particular statutory provision, s. 5(1) of the EuropeanConvention on Human Rights Act 2003, which requires that a declaration of incompatibility can only be made “where no other legalremedy is adequate and available”. That presupposes that constitutional relief is not available, which in turn means that such reliefmust be considered first. That precise point does not arise here in the sense that no declaration of incompatibility is sought, butHogan J. put it slightly more broadly at para. 8 in Gorry: “where (as here) litigants make a claim that their constitutional rights havebeen infringed, it is this claim which should be considered first by the Minister and it is only in the event that the constitutional claimshould fail that the Convention issue should then be considered. Any other approach takes from the primacy of the Constitution asthe fundamental law of the State and the principal repository of the protection of fundamental rights in this jurisdiction.”10. No doubt decision-makers will seek to follow these strictures, but I do not read Gorry as automatically meaning that if the order inwhich the points are taken does not comport with this paragraph, the decision is automatically invalid irrespective of the content ofthat decision. A number of factors came together in Gorry to warrant the orders made, and it seems to me that in the absence ofsuch other factors here, it is not necessary to read Gorry as meaning that judicial review reliefs must be granted against an otherwisecorrect decision of the executive branch if the lawful and valid content of a decision was not laid out in a particular order or sequencedictated by the judicial branch. I certainly do not read Gorry as requiring such an approach.11. The fundamental point is that the Minister does not have to write a legal essay, complete some form of legal bingo or tick off keyphrases. The issue is whether the substance of the rights are considered and whether the decision is lawful (see T.A. (Nigeria) v.Minister for Justice and Equality [2018] 1 JIC 1607 [2018] IEHC 98 (Unreported, High Court, 16th January, 2018)). That approach isconsistent with the Supreme Court decision in Oguekwe, including Denham J.’s reference to the lack of a need for a “micro specificformat” (at p. 819). Also relevant is Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at p. 600, where Costello J. held that the decisionwas not invalid because “the Minister himself did not take down the Constitution … before reaching a decision”. The same approachwas taken in B.I.S. v. Minister for Justice, Equality and Law Reform [2007] IEHC 398 (Unreported, High Court, 30th November, 2007)at p. 17 onwards, where Dunne J. cites Pok Sun Shum with approval and notes that it was followed by Ryan J., as he then was, inP.F. v. Minister for Justice, Equality and Law Reform (Unreported, High Court, 26th January, 2005). She went on to say at p. 21: “Itis not necessary for the Minister to spell out specifically that he has considered the impact of the making of an order incircumstances where on the stated facts it must be abundantly clear that there would be an impact.” It seems to me no illegalityhas been demonstrated under this heading.Was the balancing process proportionate and in accordance with constitutional rights in the Meadows sense and/or withart. 8 of the ECHR?12. Complaint was made as to the content of the proportionality analysis and the lack of regard to various factors submitted by theapplicants, including but not limited to country of origin information and the risk of destitution in view of what is alleged to be ahumanitarian crisis in Ukraine. The submission is made that the conflict in the Ukraine is not resolved, but there is no necessity for theMinister to be satisfied that the conflict has resolved.13. The submission is made that the Minister has failed to put sufficient weight on the best interests of the children, contrary to art.8 of the ECHR and art. 20 of the TFEU. In relation to that point, and the other points made under this heading, that the weight to beattributed to the various factors is primarily a matter for the decision-maker unless some illegality has been demonstrated, which isnot the case here.14. Mr. Lynn submits that because a deportation of a sex offender in what he says are similar circumstances was held to be contraryto art. 8 in Omojudi v. the United Kingdom (Application no. 1820/08, European Court of Human Rights, 24th November, 2009), thisapplicant must also succeed. It seems to me that that submission misunderstands the civil law approach that applies in Strasbourg.The European Court of Human Rights does not operate on the same strict stare decisis approach as common law countries. Assubmitted by the respondents in written submissions at para. 59, European Court of Human Rights judgments “tend to be factspecific” apart from instances of what are referred to in Strasbourg jurisprudence as “well established case law” (or “WECL” inStrasbourg parlance). In the context of the present question, the focus of the well-established caselaw is in cases such as Üner v.the Netherlands (Application no. 4641/99, European Court of Human Rights, 18th October, 2006), which is referred to by the Minister.It is not the case, as the applicant seems to think, that every outlying high-water mark case from Strasbourg must always be takenas a minimum benchmark on which any future applicant, however unmeritorious, can build.15. Other cases where criminal offending behaviour were held to be of significance or a legitimate factor in the immigration decision-making process include Boujlifa v. France [2003] 30 EHRR 419 (Application nos. 122/1996/741/940, European Court of Human Rights,21st October, 1997), Üner v. the Netherlands (Application no. 4641/99, European Court of Human Rights, 18th October, 2006),Krasniqi v. Austria (Application no. 41697/12, European Court of Human Rights, 25th April, 2017) (see also P.I. v. OberbürgermeisterinPage 3 ⇓der Stadt Remscheid Case C-348/09, EU:C:2012:300). In the present case, the Minister considered the key factors and was aware ofall the circumstances, including those not expressly mentioned in the discussion. No unlawfulness has been made out.Zambrano objection16. A point is taken pursuant to the decision in Case C-34/09 Ruiz Zambrano, but there is no evidence that the mother is going tomove to the Ukraine. Thus the complaint made has no factual basis. Indeed, Mr. Lynn accepted that the wife will probably not moveand that it is not practicable to do so. Therefore, it seems to me that the complaint is totally abstract and thus not a basis on whichthe decision can be challenged. Such a move is not going to happen anyway, so even if there is an infirmity in the discussion that isentirely irrelevant, but no such infirmity has been made out because it has not been established that there are any insurmountableobstacles to relocation should the mother so decide. Admittedly, it will not be particularly convenient for her, but that is a verydifferent thing to there being any insurmountable obstacle.Alleged flawed consideration under arts. 20 and 21 of the TFEU17. Mr. Lynn complains that there is no reference in the decision to rights stemming from arts. 20 and 21 of the TFEU, and that theMinister failed to consider the correct test of a genuine, present and sufficiently serious threat to the fundamental interests of thesociety. The Minister’s answer is as follows:(i). The first named applicant has not established as a matter of fact that the second named applicant was present in theState on the basis of art. 21 of the TFEU at relevant times. She did not apply for an EUTR residence card, and thus, likethe applicant in Adedoja v. Minister for Justice, Equality and Law Reform [2010] IEHC 406 (Unreported, High Court, 10thNovember, 2010) at para. 19 per Cooke J., the applicant “failed to take the formal steps necessary to exercise thatentitlement”. But even assuming for the sake of argument that such formal steps were not necessary, the second namedapplicant has not in fact formally established in evidence her Treaty status.(ii). More fundamentally, these points were not made to the Minster by way of submission in advance of the decision. Hadthey been so made, they would presumably have been dealt with (see my decision in Jahangir v. Minister for Justice andEquality [2018] 2 JIC 0102 [2018] IEHC 37 (Unreported, High Court, 1st February, 2018)). It is simply a form of gaslightingthe decision-maker to make points to the court that were not made in advance of the decision itself and that could, ifthey had been so made, been dealt with at that point by the statutory decision-maker. An applicant is simply not entitledto proceed in that manner.(iii). In any event the higher level of scrutiny of a deportation decision on serious grounds of public policy does not applyto the initial period of marriage. Article 28(2) of directive 2004/38/EC of the European Parliament and of the Council of 29April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory ofthe Member States only applies if the union national has had the right of permanent residence.18. I consider these objections are well-founded and that the applicant is not entitled to make this point, not having raised it with theMinister, but if I am wrong about that and the applicants are entitled to make the point, it fails for those reasons.Order19. Accordingly the order will be that the proceedings be dismissed.Postscript20. Following delivery of the foregoing judgment, Mr. Lynn applied for me to deal with a further point that he contended was notincluded in the decision. As I indicated in Walsh v. Walsh (No. 1) [2017] IEHC 181 [2017] 2 JIC 0207 (Unreported, High Court, 2ndFebruary), paras. 15-16, the parties are entitled and indeed required to make such an application to the court if they feel thatanything has been omitted and the course taken by Mr. Lynn was entirely the appropriate one. The point that he said was notaddressed was an allegation that the Minister failed to consider and apply art. 24(3) of the EU Charter of Fundamental Rights incircumstances where the analysis refers only to art. 24(2). Mr. Lynn relies on Joined Cases C 356/11 and C 357/11, O. & S. v.Maahanmuuttovirasto & Maahanmuuttovirasto v. L. (CJEU, 6th December, 2012).21. This point was not identified in the list of questions set out in written legal submissions on behalf of the applicant, which isintended to act as an issue paper for the court, as required by practice direction HC 73 para. 15: “The applicant’s written legalsubmissions shall contain the following sections: A. List of legal questions/issues. Any legal question or issue required to bedetermined by the court shall be succinctly stated in a numbered list on the first page and presented in the form of an issue paperset out in this section.”22. Two points in relation to this specific submission are notable. Firstly, it was not specifically made to the Minister. Mr. Lynn reliedon a letter of 26th May, 2016 that referred to art. 8 of the ECHR but not this provision. Secondly, art. 24(3) of the Charter is notspecifically referred to in the pleadings. Ground 7 refers to art. 24 in general terms, without particularising either this specific issue orany issue in relation to subpara. (3). Para. 6(a) of the Practice Direction draws the attention of applicants to “Order 84 rule 20(3),which provides that it shall not be sufficient for an applicant to give as any grounds of relief or interim relief an assertion in generalterms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, andidentify in respect of each ground the facts or matters relied upon as supporting that ground.” It seems to me that on either or bothof these grounds, but particularly the first, the applicant cannot raise this point. However, if I am wrong about that, the decisionacknowledges that the deportation of the first named applicant will constitute an interference with the right to private and family life(see p. 13). That in itself implicitly involves a recognition that there will be a rupture of the family. So we are back to the lack of anecessity for a box-ticking exercise given that the substance of the point was considered. Furthermore, the decision does not in itselfcontravene art. 24(3). Contact can be maintained in one shape or form notwithstanding the deportation of the first named applicant.So I am rejecting the additional point also.

Overall Result: Dismiss appeal – Mr Justice MacMenamin, Ms Justice Dunne and Mr Justice Charleton concurr with Mr Justice O’Donnell’s reasoning.