Akinkoulie and Another v Minister for Justice Equality & Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 16 November 2005
• Neutral Citation: [2005] IEHC 393
• Docket Number: [2004 No. 745 JR]
• Court: High Court
• Date: 16 November 2005

[2005] IEHC 393

THE HIGH COURT

[No. 745 J.R./2004]

AKINKOULIE & POWER v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING)

ACT 2000AND IN THE MATTER OF THE CONSTITUTION OF IRELAND 1937

BETWEEN

AKINWALE AKINKOULIE AND ELAINE POWER

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

IMMIGRATION ACT 1999 S3

MALSHEVA & CLARE v MIN JUSTICE UNREP FINLAY-GEOGHEGAN 25.7.2003 2003/33/8051

FITZPATRICK v MIN FOR JUSTICE UNREP HIGH 26.1.2005

MAHMOOD, R v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8O

SAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

CIRPACI (ORSE MCCORMACK) v MIN JUSTICE 2005 2 ILRM 547

ABDULAZIZ v UK 1985 7 EHRR 471IMMIGRATION ACT 1999 S3

IMMIGRATION

Deportation

Marriage of foreign national to Irish citizen subsequent to making of deportation order - Decision not to revoke order - Minister taking into account length of time spent together as family since marriage - Whether minister taking into account irrelevant consideration - Whether insufficient regard to family rights - Whether decision to proceed with deportation proportionate - Whether substantial grounds for challenging refusal to revoke deportation order - Immigration Act 1999 (No 22), s 3 - Leave to apply for judicial review refused (2004/745JR - Clarke J - 16/11/20050 [2005] IEHC 393; [2005] 4 IR 564 A (A) v Minister for Justice, Equality & Law Reform

Facts: The applicants sought leave to bring judicial review proceedings in order to quash a deportation order made in respect of the first named applicant on the basis that it breached their family rights. The applicant had previously requested the Minister to rescind the deportation order on the basis that he intended to marry an Irish citizen and had in fact made arrangements for such marriage. The applicants are now married. However, the Minister was not notified of the impending marriage prior to the making of the deportation order.

Held by Clarke J. in refusing the application: That the applicants failed to establish substantial grounds for arguing that they were entitled as of right to a decision in favour of revocation of the deportation order. On the evidence, it appeared that the respondent did take into account the fact of the possible impending marriage in deciding that the deportation order should not be revoked.

Reporter: L.O'S.

1. Introduction

2 2 1.1 In this application leave is sought to bring judicial review proceedings for the purposes of quashing a deportation order made in respect of the first named applicant ("Mr. Akinkoulie"). The application is brought in circumstances where the applicants are married and where the enforcement of the deportation order concerned would necessarily mean that the applicants, if they wished to continue to reside together as a family unit, would have to depart from the State. It is well settled that, in order to be given leave, the applicants must establish substantial grounds. It is unnecessary to reiterate the test by reference to which that threshold must be met.

3 3 1.2 Mr. Akinkoulie is a Nigerian national who sought asylum in this State in July 2002. That application was ultimately unsuccessful having being rejected by both the Refugee Applications Commissioner and the Refugee Appeals Tribunal. Nothing now turns on that process.

4 4 1.3 On the 18th January, 2003 Mr. Akinkoulie's former solicitors made representations to the Minister for Justice Equality and Law Reform ("the Minister") seeking to persuade the Minister to allow Mr. Akinkoulie to remain in Ireland on humanitarian grounds. Those representations arose in circumstances where it had been intimidated to Mr. Akinkoulie, in accordance with the legislation, that the Minister was considering the making of a deportation order. In those circumstances the representations were made as of right under the provisions of s. 3 of the Immigration Act 1999. It is of some note that there was not, in those representations, or in any of the accompanying documents which were submitted to the Minister with the representations, any mention of any relationship between the applicants or any mention of the possibility that a marriage between them was contemplated. That absence arises, it would appear from the affidavit of the applicants" current solicitor (which is the evidence placed before the court on this leave application), from the fact that the relationship between the applicants commenced just after the representations had been made by Mr. Akinkoulie's former solicitor.

5 5 1.4 Nothing then seems to have occurred, so far as Mr. Akinkoulie was aware, for a period of approximately 17 months. By this time (that is July of 2004) the applicants had planned to marry, with arrangements having been made for the ceremony to take place in St. Oliver's Church, Ballyvolane, Cork on 24th July, 2004. However some eight days earlier on 16th July, 2004, Mr. Akinkoulie was taken from the home of the second named applicant (Ms. Power) with a view to his deportation.

6 6 1.5 While he was not, apparently, aware of it at the time a deportation order had been sent to the address given by him to the immigration authorities under cover of a letter of 1st July, 2004. The order itself had been signed on the 3rd June, 2004. Furthermore it would appear from the evidence that a courtesy copy of the deportation order had also been sent to Mr. Akinkoulie's then solicitor. However by virtue of the fact that Mr. Akinkoulie was no longer at the address given (that is 2 Dean's Street Cork), but was staying at Ms. Power's residence the fact of the deportation order did not then come to his attention. It would appear that his solicitor, likewise, was unaware of the change of address.

7 7 1.6 As a result of the arrest referred to above, Mr. Akinkoulie, through his then solicitor, wrote by letter of 16th July, 2004, to the Minister, informing the Minister of the fact that Mr. Akinkoulie had been staying at Ms. Power's house temporarily and, more importantly of the impending marriage of the parties. In those circumstances Mr. Akinkoulie's solicitors requested that the deportation order be rescinded.

8 8 1.7 By reply dated 22nd July, 2004 the Minister indicated that notwithstanding the intended marriage, the Minister was not prepared to revoke the order.

9 9 1.8 On the evidence now before the court it would appear that the application by Mr. Akinkoulie's then solicitors to the Minister to rescind the deportation order was initially considered by an Assistant Principal Officer in the Repatriation Unit of the Minister's Department, who produced a report in writing dated 21st July, 2004. In the operative part of his recommendations that officer (Mr. Flynn) says the following:

"On re-examining this case I am of the view that while appropriate notice of intention to marry was given, it must be borne in mind that Mr. Akinkoulie was aware from 31st December, 2002 that there was an intention to deport him. He also failed to reside at his last notified address and did not inform the Department at any stage of his intended wedding until he was arrested.

In the circumstances outlined I do not recommend that consideration be given by the Minister to revoking this order."

10 10 1.9 While there was some debate at the hearing before me as to whether, on a fair reading of that report, Mr. Flynn could be said to have actually recommended that the Minister not consider the matter, on the one hand, or was simply using a turn of phrase which amounted, in substance, to a recommendation against allowing the application, on the other hand, it does not appear to me that this distinction is of any relevance in the light of the fact that there was also proved in evidence a memorandum of 22nd July, 2004 from the Private Secretary to the Minister, which confirms "that the Minister has considered the submission and indicated that he affirms the deportation signed on 3rd June, 2004".

11 11 1.10 The memorandum also records that "the Minister has indicated that this decision should be conveyed in writing to Mulvihill Solicitors. It is to be noted that the information relating to Mr. Akinkoulie's intention and arrangements to marry were not brought to the Department's or the Minister's attention prior to the deportation order being signed. It is also to be noted that the Minister has taken note of the information relating to Mr. Akinkoulie's intention and arrangements to marry and has indicated that it does not alter the decision made to deport Mr. Akinkoulie".

12 12 1.11 On the evidence before the court it would, therefore, appear that the Minister did consider the application and, for the reasons indicated in the memorandum from his Private Secretary, was not persuaded to allow it. On foot of that decision the letter of 22nd July, 2004 was sent.

2. Previous Orders

2 2 2.1 In those circumstances these proceedings were commenced. By order of Lavan J. on 25th August, 2004 (made as a result of an ex parte application) the Minister was restrained from deporting Mr. Akinkoulie. By further order of Gilligan J. made on 2nd September, 2004, the order of Lavan J. was, in substance, continued and it was further ordered that Mr. Akinkoulie be released pending the determination of these proceedings on terms contained in an undertaking given to the court by his counsel. On foot of that arrangement Mr. Akinkoulie was released and the applicants married on 10th September, 2004. They have, apparently, lived together since that date as a family unit.

3 3 2.2 Against that background, the applicants seek leave to challenge the deportation order by judicial review. While there are some additional points raised, the central thrust of...