Amadasun v Minister for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date16 December 2004
Neutral Citation[2004] IEHC 378
Docket Number[2004 No. 831 JR],IEHC 378/[2004]
Date16 December 2004

[2004] IEHC 378

THE HIGH COURT

IEHC 378/[2004]
Record Number: 831 JR 2004
AMADASUN v. MINISTER FOR JUSTICE & ORS

BETWEEN:

MERCY AMADASUN AND MARABEL AMADASUN A MINOR SUING BY HER MOTHER AND NEXT FRIEND MERCY AMADASUN
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND AND HUMAN RIGHTS COMMISSION
RESPONDENTS

Citations:

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

BLAKE & HUSSAIN IMMIGRATION ASYLUM & HUMAN RIGHTS PARA 4.72

OSAYANDE & LOBE V MIN JUSTICE 2003 1 IR 1

BERREHAB V NETHERLANDS 11 EHRR 322

SOMMERFELD V GERMANY 38 EHRR 35

UN CONVENTION ON THE RIGHTS OF THE CHILD 1990 ART 3

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 14

MARCKX V BELGIUM 1980 2 EHRR 330

ABDULAZIZ & CABALES & BALKANALI V UNITED KINGDOM 1985 7 EHRR 471

CONSTITUTION

IRISH NATIONALITY & CITIZENSHIP BILL 2004

CHEN V SECRETARY OF STATE FOR THE HOME DEPARTMENT UNREP ECJ OPINION 18.5.2004

EEC DIR 90/364

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE RAZGAR 2004 3 AER 821

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

EEC DIR 2000/43/EC

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 13

AL-NASHIF V BULGARIA 2002 ECHR 497

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

VILVARAJAH V UNITED KINGDOM 1992 14 EHRR 248

SOERING V UNITED KINGDOM 1989 11 EHRR 439

R V SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE BUGDAYCAY 1987 AC 514 1987 1 AER 940

R V SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE JEYAKUMARAN UNREP MAY 28.6.1985 (UK)

DALY, R V HOME SECRETARY 2001 2 WLR 1622 2001 3 AER 433

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

IMMIGRATION ACT 1999 S3(6)(j)

IMMIGRATION ACT 1999 (DEPORTATION) REGULATIONS 1999 SI 319/1999

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

1

Mr Justice Michael Peart delivered on the 16th day of December 2004 :

2

The first named applicant is a Nigerian lady who arrived in the State on the 16 th May 2003, claimed asylum, and only 12 days later gave birth to the second named applicant, her daughter.

3

She claimed asylum here on the basis of a fear of persecution arising from the fact that she alleged that her father in law was a member of a secret cult in Nigeria, which sought to initiate her husband into the cult against their wishes. I have been informed that her husband and other two children, are not in this State with her. She states in her affidavit that she believes that her husband is in Nigeria and that she has not been able to make contact with him since her arrival here.

4

Her application for asylum was treated by the RAC as being manifestly unfounded. Her appeal against that decision was unsuccessful. In April 2004 she received a notification (and her solicitors received a copy thereof) from the Minister stating that her application for a declaration has been refused, and that as a result her entitlement to remain in the State had expired, and that the Minister consequently then proposed making a deportation order.

5

This letter outlined in the usual way the three options available to the applicant i.e. leave the State before a Deportation Order is made; consent to the making of a Deportation Order; or make representations to remain temporarily in the State. The third option was chosen by the applicant. Her then solicitors, Pendred & Company then made submissions on her behalf in a letter dated 6 th May 2004 which were received in the Minister's office on the 11 th May 2004.

6

These submissions refer to the fact that the applicant was at that time thirty three years of age, and had resided here by then for almost one year. It also referred in some detail to what were alleged to be the reasons for her flight to this State and which presumably were the basis for her application for asylum, which was found to be manifestly unfounded. Curiously, a part of this document states that "she, her husband and two children travelled to Benin, where they stayed for two weeks before going to Togo. The applicant instructs that she then left her family, before travelling to Abidjan and then on to Ireland." As I have stated already her affidavit refers to her husband being in Nigeria, but that she has been unable to contact her. I presume this means that she has had no contact with her other two children either, though this is not stated specifically. However, perhaps I am misinterpreting something. In any event nothing significant turns on the point at this stage, except that it may have some significance in view of the fact that in her submissions it is stated that if she were to be returned to Nigeria she would have no home or support network to return to.

7

Having referred to her alleged fear of persecution for the reasons given, this submission then turns to the fact of her daughter's birth here and to the fact that she is thereby an Irish citizen. It is stated that a birth certificate would "follow shortly", but I have been informed that this was never furnished, and still has not been furnished even up to the date of this hearing. This seems strange in respect of such an important document, and one which should be readily obtainable here. It was submitted that the applicant had parental responsibilities to her child which necessitated her presence here with her child, and that the child has a constitutional right to the society here of her mother. It was also submitted that the Minister could ignore that right by deporting the mother and thereby denying the child the company of her mother, only if after due and proper consideration the Minister is satisfied that such is in the interests of the common good and the protection of society and the State, and that reasons in this regard would have to be compelling ones associated with the common good. It is submitted that each case must be individually considered before a Deportation Order can be made, and that since this State is a signatory to the UN Convention on the Rights of the Child, it has assumed the responsibility and obligation of ensuring that the best interests of the child are given primacy in all its actions and decisions affecting the second named applicant. It is also submitted that in circumstances where the result of the applicant being deported is that an Irish born child will be returned to Nigeria, a country to be a known refugee producing country, a country where the child will not enjoy citizenship rights having been born here and may be thereby discriminated against there, where the applicant would not be able to house herself and her child and look after their material and physical welfare, and would be forced to live a life of destitution, the Minister must be taken not to have appropriately considered the best interests of the child in accordance with his national and international obligations.

8

The submission then goes on to recount how well the applicant has integrated herself into Irish society, has been law abiding, in good health, and would wish to have the opportunity of using her skills here to the benefit of Irish society as a whole.

9

The applicant's file was then examined under s. 3 of the Immigration Act, 1999by an executive officer on the 2 nd July 2004, following which a recommendation was made to the Minister on the 5 th July 2004 that the application for leave to remain be refused. This examination document under the heading "Name and date of Birth of Irish born child" states "Unknown". Nevertheless the document proceeds to deal with the application on the basis that such a child exists, but refers thereto as "unknown Irish born child". The document gives consideration to the position legally of this child and to her rights, and addresses the issues raised in the submission made, and states in its conclusion that individual consideration has been given to the application involving as it does an Irish born child.

10

Having refused the application for leave to remain, the Minister made a Deportation Order on the 30 th July 2004 which was sent to the applicant by letter dated 2 nd September 2004. She was required to present herself to GNIB on 9 th September 2004. She did so and was required to re-attend on the 21 stSeptember 2004 which, I assume she again complied with, but in any event an interim injunction was obtained on the 5 th October 2004 restraining further steps being taken on foot of the deportation order pending determination of these proceedings, since no undertaking not to deport was forthcoming from the Minister's Department.

11

In her grounding affidavit the applicant states that the notification of the deportation order gave as the sole reason for the making of same the fact the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of her case as might tend to support her being granted leave to remain in the State. She states also that no mention is made of the rights of her children and that no reasoning or evidential basis is provided as to why the stated policy reasons should outweigh the interest of her daughter in residing and growing up in the country of her citizenship. She states that it is vital to her child's welfare that she be allowed remain here with her, and that her child is being discriminated against solely on the basis of her parentage, race, and/or ethnic origin, and that there is no objective reason to justify such discrimination.

12

The point is also made in her affidavit that her deportation from the State would prevent her from entering another EU state, and this in turn will prevent her daughter...

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