Alli (A Minor) v Minister for Justice

JurisdictionIreland
CourtHigh Court
Judgment Date02 December 2009
Date02 December 2009
Docket Number[2009 No. 193
Alli (a minor) v. Minister for Justice
Ganiyu Alli (a minor suing by his father and next friend Kabir Alli) and Kabir Alli
Applicants
and
The Minister for Justice, Equality and Law Reform
Respondent
[2009 No. 193 JR]

High Court

Immigration - Irish born child - Foreign national parents of Irish citizen child - Deportation of foreign parent - Right of Irish born child to remain with family in State - Factors to be assessed in making deportation order - Common good - Public policy - Integrity of immigration system - Insurmountable obstacles - Whether assessment of insurmountable obstacles incorporated element of reasonableness - Whether integrity of immigration system justified deportation - Whether decision of respondent proportionate - Immigration Act 1999 (No. 22), s. 3 - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 8.

Constitution - Personal rights - Citizens - Family rights - Non-national parent - Child citizen - Deportation order - Birth of Irish citizen prior to arrival of foreign national parent in State - Whether right of child to company, care and parentage of parents in State absolute and unqualified - Whether substantial reason associated with common good requiring deportation - Refugee Act 1996 (No. 17), ss. 5, 9 and 18 - Constitution of Ireland 1937.

The second applicant is the father of the first applicant who was born in and is a citizen of the State. The second applicant arrived in the State three years after the birth of the first applicant to join his wife, the mother of the first applicant and who had temporary leave to remain in the State. The second applicant made an application for asylum on entering the State. The respondent made a deportation order against the second applicant after his asylum application failed. The applicants sought an order of certiorari by way of application for judicial review quashing the deportation order made against the second applicant and declaratory relief that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights 1950 were infringed.

Held by the High Court (Clark J.), in refusing the relief sought, 1, that the test, when considering the deportation of a citizen child's family member, was whether a family could not reasonably be expected to move to the country of origin with the deportee.

Oguekwe v. Minister for Justice [2008] IESC 25,[2008] 3 I.R. 795 applied; Huang v. Home Secretary[2007] UKHL 11, [2007] 2 A.C. 167 followed.

2. That the respondent could deport the second applicant notwithstanding the very important status of citizenship in pursuit of an orderly and fair restrictive immigration policy in the common good provided that a full and fair assessment of the particular child and family's situation was balanced against the State's interests and the decision was proportionate to those interests.

3. That the question of insurmountable obstacles to a deportee's return to their country of origin did not incorporate an exceptionality rule.

4. That the respondent did not err in law in asking, for the purpose of assessing whether to make the deportation order, whether there were insurmountable obstacles to the family moving with the second applicant to Nigeria and continuing family life with him there and that an evaluation of whether there were insurmountable obstacles to the family moving with the second applicant incorporated an evaluation of the reasonableness of expecting that family to move.

Oguekwe v. Minister for Justice [2008] IESC 25,[2008] 3 I.R. 795 and T.C. v. Minister for Justice[2005] IESC 42, [2005] 4 I.R. 109 applied;

5. That the reason identified by the respondent requiring the deportation of the second applicant, being the absence of a less restrictive process capable of achieving the State's aim to maintain control of its borders and operate a regulated system for non-nationals in the State, was a substantial reason associated with the common good justifying the deportation order made.

Oguekwe v. Minister for Justice [2008] IESC 25,[2008] 3 I.R. 795 and A.O. & D.L. v. Minister for Justice[2003] 1 I.R. 1 applied. Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 and Osheku v. Ireland[1986] I.R. 733 followed.

Cases mentioned in this report:-

M.A. (Pakistan) v. Secretary of State for the Home Department [2009] EWCA Civ 953, Times Law Reports, 5th October, 2009; [2010] Imm A.R. 196.

Ajayi v. United Kingdom (App No. 27663/95) (Unreported, European Court of Human Rights, 22nd June, 1999).

Asibor (a minor) v. Minister for Justice, Equality and Law Reform [2009] IEHC 594, (Unreported, High Court, Clark J., 2nd December, 2009).

E.B. (Kosovo) v. Home Secretary [2008] UKHL 41, [2009] A.C. 1159; [2008] 3 W.L.R. 178; [2008] 4 All E.R. 28.

H.B. v. Secretary of State for the Home Department[2006] EWCA Civ 1713, [2006] All E.R. (D) 213.

Z.B. (Pakistan) v. Secretary of State for the Home Department[2009] EWCA Civ 834, [2010] I.N.L.R. 195.

Bode (a minor) v. Minister for Justice [2006] IEHC 341, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006).

Boultif v. Switzerland (App. No. 54273/00) (2001) 33 E.H.R.R. 1179.

T.C. v. Minister for Justice [2005] IESC 42, [2005] 4 I.R. 109; [2005] 2 I.L.R.M. 547.

Chikwamba v. Home Secretary [2008] UKHL 40, [2008] 1 W.L.R. 1420; [2009] 1 All E.R. 363.

Da Silva v. The Netherlands (App. No. 50435/99) (2007) 44 E.H.R.R. 34; [2006] 1 F.C.R. 229.

Dimbo v. Minister for Justice, Equality and Law Reform [2006] IEHC 344, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006); [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008).

A.F. (Jamaica) v. Secretary of State for the Home Department[2009] EWCA Civ 240, [2009] W.L.R. (D) 112.

Fajujonu v. Minister for Justice [1990] 2 I.R. 151; [1990] I.L.R.M. 234.

Gül v. Switzerland (App. No. 23218/94) (1996) 22 E.H.R.R. 93.

Huang v. Home Secretary [2007] UKHL 11, [2007] 2 A.C. 167; [2007] 2 W.L.R. 581; [2007] 4 All E.R. 15.

Konstantinov v. The Netherlands (App no. 16351/03) (Unreported, European Court of Human Rights, 26th April, 2007).

McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125.

L.M. (D.R.C.) v. Secretary of State for the Home Department [2008] EWCA Civ 325, (Unreported, Court of Appeal, 17th March, 2008).

Mokrani v. France (App. No. 52206/99) (2005) 40 E.H.R.R. 123.

Narenji Haghighi v. The Netherlands (App. No. 38165/07) (2009) 49 E.H.R.R. SE8.

A.O. & D.L. v. Minister for Justice [2003] 1 I.R. 1.

Oguekwe v. Minister for Justice [2006] IEHC 345, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006); [2008] IESC 25, [2008] 3 I.R. 795; [2008] 2 I.L.R.M. 481.

Omoregie v. Norway (App no. 265/07) (Unreported European Court of Human Rights, 31st October, 2008).

Osheku v. Ireland [1986] I.R. 733; [1987] I.L.R.M. 330.

The People v. O'Shea [1982] I.R. 384; [1083] I.L.R.M. 549.

Pok Sun Shum v. Ireland [1986] I.L.R.M. 593.

R. (Mahmood) v. Home Secretary [2000] EWCA Civ 315, [2001] 1 W.L.R. 840; [2001] 1 F.L.R. 756; [2001] 2 F.C.R. 63.

R. (Razgar) v. Home Secretary [2004] UKHL 27, [2004] 2 A.C. 368; [2004] 3 W.L.R. 58; [2004] 3 All E.R. 821.

D.S. (India) v. Secretary of State for the Home Department [2009] EWCA Civ 544, [2010] Imm. A.R. 81.

Sen v. The Netherlands (App. No. 31465/96) (2003) 36 E.H.R.R. 81.

Üner v. The Netherlands (App. No. 46410/99) (2007) 45 E.H.R.R. 421.

V.W. (Uganda) and A.B. (Somalia) v. Home Secretary[2009] EWCA Civ 5, [2009] Imm A.R. 436.

Zhu and Chen v. Secretary of State for the Home Department (Case C-200/02) [2004] E.C.R. I-9925.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of Clark J., infra.

By order dated the 22nd May, 2009, the High Court (McMahon J.) granted the applicants leave to seek relief by way of judicial review.

The application for judicial review was heard by the High Court (Clark J.) on the 15th, 16th, 17th and 21st July, 2009.

Cur. adv. vult.

Clark J.

2nd December, 2009

[1] By order of McMahon J. of the 22nd May, 2009, the applicants were granted leave to apply for an order ofcertiorari to quash the decision of the respondent, dated the 27th January, 2009, making a deportation order against the second applicant. A similar leave order was made by Feeney J. on the 11th June, 2009, in the case of Mr. Lovis Asibor [2009 No. 200 J.R., see [2009] IEHC 594]. The second applicant 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 4 days in July, 2009.

[2] In brief, the second applicant 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. The second applicant 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 respondent'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 is a national of Nigeria. He is the father of the first applicant who is a citizen of Ireland. The second applicant married his wife in 2003. The second applicant's wife, who is not a party...

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