Alli (A Minor) v Min for Justice

• Jurisdiction: Ireland
• Judge: MS. JUSTICE M. H. CLARK,
• Judgment Date: 02 December 2009
• Neutral Citation: [2009] IEHC 595
• Court: High Court
• Date: 02 December 2009

[2009] IEHC 595

THE HIGH COURT

[No.193 J.R./2009]

Alli (a Minor) v Min for Justice

JUDICIAL REVIEW

BETWEEN

GANIYU ALLI (A MINOR, SUING BY HIS FATHER AND NEXT FRIEND KABIR ALLI) AND KABIR ALLI

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

FAJUJONU v MIN FOR JUSTICE & ORS 1990 2 IR 151

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

REFUGEE ACT 1996 S18

CHEN & ANOR v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 3 WLR 1453 2005 AER (EC) 129 2004 3 CMLR 48

HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 2 AC 167 2007 2 WLR 581 2007 4 AER 15

CHIKWAMBA v SECRETARY OF STATE FOR THE HOME DEPT 2008 1 WLR 1420 2009 1 AER 363

EB (KOSOVO) v SECRETARY OF STATE FOR THE HOME DEPT 2009 1 AC 1159 2008 3 WLR 178 2008 4 AER 28

VW (UGANDA) & AB (SOMALIA) v SECRETARY OF STATE FOR THE HOME DEPT 2009 IMM AR 436 2009 INLR 295

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

OSHEKU v IRELAND & ORS 1986 IR 733 1987 ILRM 330 1986/7/1474

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

REFUGEE ACT 1996 S9(1)

REFUGEE ACT 1996 S9(2)

IMMIGRATION ACT 1999 S3(2)(F)

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3.1

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3.2

OGUEKWE v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.11.2006 2006/46/9827 2006 IEHC 345

BODE v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.11.2006 2006/6/1136 2006 IEHC 341

DIMBO v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 14.11.2006 2006/15/3094 2006 IEHC 344

REFUGEE ACT 1996 S13

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4(2)

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

GUL v SWITZERLAND 1996 22 EHRR 93

AJAYI & ORS v UNITED KINGDOM UNREP ECHR 26.6.1999 (APP NO 27663/95)

BOULTIF v SWITZERLAND 2001 33 EHRR 50 2001 2 FLR 1228

SEN v NETHERLANDS 2003 36 EHRR 7

MOKRANI v FRANCE 2005 40 EHRR 5

UNER v NETHERLANDS 2007 45 EHRR 14 2006 3 FCR 340

KONSTATINOV v NETHERLANDS 2007 2 FCR 194

OMOREGIE & ORS v NORWAY 2009 IMM AR 170

HAGHIGHI v NETHERLANDS 2009 49 EHRR SE8

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821

HB (ETHIOPIA) & ORS v SECRETARY OF STATE FOR THE HOME DEPT 2007 IMM AR 396

LM (DEMOCRATIC REPUBLIC OF CONGO) v SECRETARY OF STATE FOR THE HOME DEPT 2008 INLR 254

AF (JAMAICA) v SECRETARY OF STATE FOR THE HOME DEPT 2009 EWCA CIV 240

DS (INDIA) v SECRETARY OF STATE FOR THE HOME DEPT 2009 EWCA CIV544 IMMAR 81

MA (PAKISTAN) v SECRETARY OF STATE FOR THE HOME DEPT 2010 IMM AR 196 2009 EWCA CIV 953

BI (PAKISTAN) v SECRETARY OF STATE FOR THE HOME DEPT 2009 EWCA CIV 834

VM & MO v UGANDA 2008 UKAIT 00021

CIRPACI (ORSE McCORMACK) v MIN FOR JUSTICE 2005 4 IR 109 2005 2 ILRM 547 2005/10/2112 2005 IESC 42

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA 1995 2 ILRM 125 1995/3/1122

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

IMMIGRATION

Deportation

Judicial review - Leave - Deportation order - Father of citizen child - Children born in state - Whether error in application of insurmountable obstacles test - Whether proper to apply reasonableness test - Whether failure to comply with Supreme Court guidelines - Rights of citizen children -Immigration policy - Balancing of rights of citizen child and right of state to refuse leave to remain - Representations to minister - Ministerial examination of file - Consideration of personal circumstances - Assessment of proportionality of deportation - Insurmountable obstacles test - Application of European Convention on Human Rights jurisprudence - Whether reasonableness test involves lower threshold than insurmountable obstacles test - Meaning of âÇÿinsurmountable obstacles' - Whether failure to identify sufficient substantial reason - Whether failure to reach reasonable and proportionate decision - Whether substantial grounds for review - Requirement for fact-specific assessment of rights of citizen child and family - Use of formulaic language by minister - Interests of common good - Oguekwe v Minister for Justice [2008] IESC 25, [2008] 3 IR 795; Fajujonu v Minister for Justice [1990] 2 IR 151; Dimbo v Minister for Justice [2008] IESC 26, (Unrep, SC, 1/5/2008); Zhu and Chen v Secretary of State (Unrep, 19/10/2004); Huang v Secretary of State [2006] 2 AC 167; Chikwamba v Secretary of State [2008] 1 WLR 1240; EB (Kosovo) v Secretary of State [2008] 3 WLR 178; VW (Uganda); AB (Somalia) v Secretary of State [2009] WLR 7; R(Mahmood) v. Home Secretary [2001] 1 WLR 840; Pok Sun Shum v Ireland [1986] ILRM 593; Osheku v Ireland [1986] 1 IR 733; AO & DL v Minister for Justice [2003] 1 IR 1; Bode v Minister for Justice [2006] IEHC 341, (Unrep, Finlay Geoghegan J, 14/11/2006); Gül v Switzerland (1996) 22 EHRR 93; Ajayi v United Kingdom (27663/95, 26/6/1999); Boultif v Switzerland (2001) 33 EHRR 50; Sen v Netherlands (2003) 36 EHRR 7; Mokrani v France (2005) 40 EHRR 5; Uner v Switzerland (2007) 45 EHRR 14; Konstantinov v Netherlands (16351.03, 26/4/2007); Omoregie v Norway (265/07, 31/10/2008); Haghighi v Netherlands (2009) 49 EHRR 8; Da Silva v Netherlands (2007) 44 EHRR 34; R v Home Secretary, ex parte Razgar [2004] 2 AC 368; HB (Ethiopia) v Home Secretary [2006] EWCA Civ 1713; [2007] Imm AR 396; LM (Democratic Republic of Congo) v Secretary of State [2008] EWCA Civ 325; AF (Jamaica) v Secretary of State [2009] EWCA Civ 240; DS (India) [2009] EWCA Civ 544; ZB (Pakistan) v Secretary of State [2009] EWCA Civ 834; Cirpaci v Minister for Justice [2005] 2 ILRM 547; McNamara v An Bord Pleanala (No 1) [1995] 2 ILRM 125 and The People v O'Shea [1982] IR 384 considered - Refugee Act 1996 (No 6), ss 5, 9 and 18 - Immigration Act 1999 (No 22), s 3 - Leave refused (2009/193JR - Clark J - 2/12/2009) [2009] IEHC 595

A(G) v Minister for Justice, Equality and Law Reform

Facts: The applicants were granted leave to quash a decision of the respondent Minister to make a deportation order against the second named applicant, who was the Nigerian father of Irish-born twins. The applicants challenged the nature and quality of the assessment of the Minister of the applicants' facts and circumstances and the manner in which the rights were weighed against the rights of the State. The issue arose as to the meaning of the phrases "proportionate", "insurmountable obstacles" and "substantial reasons" and the extent to which the Minister had asked whether a deportation would be in breach of Article 8 ECHR. The applicants argued that the manner in which the Minter had balanced and considered the competing rights and interests failed to comply with the judgment of the Supreme Court in Oguekwe v. Minister for Justice, Equality & Law Reform [2008] 2 ILRM 471. The applicants also contended that the Minister had failed to identify a substantial reason requiring deportation and had failed to reach a reasonable and proportionate decision.

Held by Clark J. that the Court was satisfied that the "insurmountable obstacles" test has been replaced by a one of reasonableness. The Court was satisfied that the Minister took full account of the circumstances of the Alli family, that he acted in accordance with law when he asked whether there were any insurmountable obstacles to the family following Mr. Alli to Nigeria and that it was reasonable for him to find that there were no insurmountable obstacles to the family being able to continue family life in Nigeria. The Minister had weighed all the competing interests and there was no requirement that the Minister carry out any more detailed or sophisticated an analysis than that conducted. The Court was unable to identify any ground of challenge which had been established. The application for certiorari would be refused.

Reporter: E.F.

1 By order of McMahon J. on the 22 ^nd May, 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 27 ^th January, 2009, making a deportation order against Mr Kabir Alli, the second named applicant. A similar leave order was made by Feeney J. on the 11 ^th June, 2009 in the case of Mr Lovis Asibor [2009 No. 200 J.R.]. Mr Alli and Mr Asibor are not related but as the same issues arose in both cases, the judicial review hearings took place together at the King's Inns, Court No. 1, over four days in July, 2009. Mr Mark de Blacam S.C. with Mr Colm O'Dwyer B.L. appeared for the Alli family. 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.

2 In brief Mr Alli and Mr Asibor are the fathers of citizen children whose wives have leave to remain in this country with their children. Both families also contain children who are not Irish citizens. Mr Alli and Mr Asibor arrived in Ireland three years after the birth of their citizen children and are both subject to deportation orders. They challenge the Minister's decision to deport them on similar grounds. Their arguments are analysed at length in this decision but the Court's conclusions on the applicable principles apply equally to the deportation of Mr Asibor.

Background

3 The applicants in this case are members of a family living in Athlone. The second applicant Mr Alli is a...