E.O. (aka E.A.) and Another v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK
• Judgment Date: 30 January 2014
• Neutral Citation: [2014] IEHC 30
• Judgment citation (vLex): [2014] 1 JIC 3006
• Court: High Court
• Date: 30 January 2014

[2014] IEHC 30

THE HIGH COURT

Record No. 478 J.R./2012

O (E) & A (P) (an infant) v Min for Justice & Ors

JUDICIAL REVIEW

Between:

E.O. (PREVIOUSLY KNOWN AS E.A.) AND P.A. (AN INFANT, SUING BY HIS FATHER AND NEXT FRIEND E.O.)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3(11)

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 2 CMLR 46 2011 2 FCR 491 2011 AER (EC) 491 2011 ECR I-1177

CONSTITUTION ART 41

CONSTITUTION ART 42

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

O (A) v MIN FOR JUSTICE (NO 2) UNREP HOGAN 17.1.2012 2012/36/10585 2012 IEHC 79

O (A) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 3.4.2012 2012 IEHC 104

ALLI (A MINOR) v MIN FOR JUSTICE 2010 4 IR 45 2009/3/608 2009 IEHC 595

ASIBOR (A MINOR) & ORS v MIN FOR JUSTICE UNREP CLARK 2.12.2009 2009/4/774 2009 IEHC 594

KADRI v GOVERNOR OF WHEATFIELD PRISON UNREP SUPREME 10.5.2012 2012/20/5671 2012 IESC 27

A (E) & A (P) v MIN FOR JUSTICE UNREP HOGAN 7.9.2012 2012 IEHC 371

CONSTITUTION ART 42.1

CONSTITUTION ART 40.1

CONSTITUTION ART 42.5

U (H) & ORS v MIN FOR JUSTICE UNREP CLARK 29.9.2010 2010/50/12611 2010 IEHC 371

A (X) (AN INFANT) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.10.2011 2011/1/192 2011 IEHC 397

RSC O.19 r29

DE BLACAM JUDICIAL REVIEW 2ED 2009 452-453

RSC O.84 r18(2)

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

CONSTITUTION ART 28.2

CONSTITUTION ART 15.2.1

IMMIGRATION ACT 2004 S5(1)

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011/26/6999 2011 IEHC 66

S (B) & ORS v MIN FOR JUSTICE UNREP CLARK 13.10.2011 2011/45/12744 2011 IEHC 417

SMITH v MIN FOR JUSTICE & ORS CLARKE 1.2.2013 2013 IESC 4

ZHU & CHEN v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 ECR I-9925 2005 AER (EC) 129

DERECI v BUNDESMINISTERIUM FUR INNERES 2012 1 CMLR 1311 2012 AER (EC) 373 2011 ECR I-11315

MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPT 2011 AER (EC) 729 2011 AER (D) 156 (MAY) 2011 ECR I-3375

O & ANOR v MAAHANMUUTTOVIRASTO 2013 2 WLR 1093 2013 FAM 203 2013 AER (EC) 563 2012 AER (D) 122 (DEC)

O & S v MINISTER VOOR IMMIGRATIE JOINED CASES C-456/12 C-457/12 2014 AER (D) 145 (MAR)

ALOKPA & MOUDOULOU v MINISTRE DU TRAVAIL UNREP ECJ 21.3.2013 CASE NO C-86/12

Judicial Review – Asylum - Deportation - Interlocutory injunction restraining deportation - Declarations - Application for subsidiary protection refused - Deceptive conduct of applicant - Constitutional rights - Irish citizenship of child - Family unit - Care and company of parents - Revocation application - Immigration Act 1999

Facts: The first named applicant was originally from Nigeria. The second named applicant was his infant son. The first named applicant applied for asylum upon entering the country on the 7 ^th June 2005 and was subsequently married to a woman with refugee status the following year. His son was born some time later and is an Irish citizen. The first named applicant"s asylum application was rejected at first instance and on appeal due to doubts about his credibility. He then made a claim for subsidiary protection which was also rejected after it was confirmed he had in fact lied about his country of origin and background. He was subsequently deported but re-entered the country on 5th December 2010. The first named applicant had also been separated from the mother of his child since September 2008 despite imitating to officials that the 'couple and their son live together as a family unit'.

The first named applicant was, however, successful in an application for an interlocutory injunction restraining his deportation while proceedings were brought before the District Court for access to his son following the separation from his wife. In the substantive proceedings, the first named applicant sought a declaration that he should not be deported until his son was an adult because it would be a breach of the child"s constitutional and fundamental rights to have the care and company of his father. When the substantive hearing was held, the respondents argued that the proceedings should be discontinued and the first named applicant should instead seek revocation of the deportation order under Section 3(11) of the Immigration Act 1999. An undertaking was offered not to deport him until such a revocation application was finally determined. However, the first named applicant refused to discontinue the proceedings, claiming that he had a constitutional right to proceed as leave had already been granted. Subsequently, an application for revocation was made.

Held by Clark J. that in light of the revocation application, there was no point in continuing with this action. It was said that it was clear that the Minister had been willing to grant an undertaking not to deport the father pending the determination of a revocation application. Since that application was in fact brought, the basis of the substantive proceedings – the preservation of the rights of the second named applicant - would not have been affected if these proceedings had have been discontinued.

It was also said that the declarations sought were beyond the Court"s jurisdiction in that if granted they would tie the first named respondent"s hand and exceed the competence of the Court. This was so notwithstanding the fact that leave had originally been granted to apply for judicial review. It was said that the declaration that was sought by the first named applicant would involve a breach of the separation of powers between the executive and the judiciary because it would usurp the exclusive decision-making powers of the Minister in relation to immigration matters. It was also said even if that wasn"t the case, the grant of declaratory relief was discretionary and it would be inappropriate to grant the relief sought because of the dishonest conduct of the first named applicant throughout his engagement with the immigration services and the courts.

1 1. This is an unusual case characterised by an extraordinary shifting of assertions and positions where the only constant has been the relationship of a father and a son, and where the father proposes a near absolutist right to play a role in his son's upbringing as his son's constitutionally protected right. The father argues that this is a right which should prevent his deportation during his son's minority.

2 2. By way of background and explanation of how the case came to be in this unusual place the following facts are outlined. Eugene A., the father, is the first applicant and a national of Nigeria. He has no permission to be in the State and is a failed asylum seeker. His son is the second applicant and an Irish citizen born in this State within a marriage between his mother, a recognised refugee from Nigeria, and the first applicant. He was born in this State in 2007 to parents who married in 2006. At this time his father, the first applicant, was an asylum seeker claiming to be from Sudan. The father's involvement in the asylum process was marked with particularly egregious dishonesty. The asylum claim failed and the first applicant was deported in 2010, but some months later he re-entered the State illegally and has remained here since. The Minister refused to revoke the deportation order made against him and the order remains in force. That refusal to revoke was not challenged: instead the applicants sought an injunction restraining the father's deportation "at this juncture" while proceedings were brought before the District Court for access to his son following judicial separation proceedings.

3 3.The case first came before this Court as a substantive application for judicial review. Hogan J. had granted an injunction restraining the father's deportation until further order, together with leave to seek, by way of judicial review, a declaration that the Minister was not entitled to deport the father until his son had reached the age of majority on the basis that the child had a constitutional right to the care and company of his father during that period.

4 4. In December, 2012 when the substantive hearing began before this Court and further affidavits had been filed, it became apparent that the most appropriate step would be for the current proceedings to be discontinued and for the applicant to seek revocation of the deportation order under Section 3(11) of the Immigration Act 1999. Information which had not been put before the Minister included the fact that Eugene A. was legally separated from his wife and that he now has regular court-ordered access to the second applicant P.A., his son, with whom he had a relationship and who he would be able to support if permitted to remain. The respondents, through Mr Conlan Smyth BL, were prepared to offer an undertaking not to deport the father until the proposed application for revocation was fully determined. However, Mr O'Shea BL for the applicants declined to discontinue his proceedings insisting that as he had been granted leave to seek a declaration, he was entitled to continue with his action.

5 5. The Court then adjourned the hearing to allow the father to apply for revocation within a particular period of time. After some delay, the revocation application was brought in February, 2013. Notwithstanding the Court's view that there was now no utility in continuing with the action in being and, of more importance, that the declarations sought were beyond jurisdiction in that if granted they would tie the Minister's hand and exceed the competence of the Court, the applicants insisted that they had a constitutional right to proceed once leave had been granted.

6 6. In subsequent affidavits in these proceedings Eugene A. presented...