An and Others v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan & Fennelly J.
• Judgment Date: 18 October 2007
• Neutral Citation: [2007] IESC 44
• Docket Number: [S.C. No. 459 of 2004]
• Court: Supreme Court
• Date: 18 October 2007

[2007] IESC 44

THE SUPREME COURT

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 459/2004]

N (A) & Ors v Min for Justice & Commissioner of An Garda Siochana

JUDICIAL REVIEW

BETWEEN

A N AND L N, C N, U N, C N AND W N, MINORS SUING BY THEIR MOTHER AND NEXT FRIEND A N

APPLICANTS/APPELLANTS

And

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND COMMISSIONER OF AN GARDA SIOCHÁNA

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)

IMMIGRATION ACT 1999 S3(2)(f)

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 213

REFUGEE ACT 1996

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 185

Z v MIN JUSTICE 2002 2 IR 135 2002 2 ILRM 215

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 213

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 214

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 215

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 216

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 217

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 218

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 181

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 182

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 183

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 184

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 186

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 187

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 188

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 190

IMMIGRATION LAW

Deportation

Asylum - Validity - Whether deportation orders made ultra vires - Jurisdiction to make deportation orders - Whether minor applicants making applications for asylum - Whether decision refusing asylum made in respect of minor children of applicant for asylum - v Z v Minster for Justice [2002] 2 IR 135 applied - Immigration Act 1999 (No 22), s 3(2)(f) - Appeal allowed, certiorari granted (459/2004 - SC - 18/10/2007) [2007] IESC 44

N(A) v Minister for Justice

The first applicant was the mother of the second to sixth applicants. The first applicant's application for asylum was refused. No separate applications were made for the children. The issue in this appeal was whether the second to sixth applicants were persons whose applications for asylum had been refused and in respect of whom deportation orders could be made.

Held by the Supreme Court in allowing the appeals and quashing the deportation orders that no decisions refusing asylum had been made in the case of any of the second to sixth applicants. At no stage in the asylum process did any document emanating from or required by the Minister advert to the existence of applications on behalf of the applicants.

Reporter: R.W.

1 Judgment of Mr Justice Finnegan & Fennelly J. delivered on the 18th day of October 2007

2 A N (hereinafter the "next friend") is not a party to this appeal her application for leave to apply for judicial review having been refused in the High Court. She is the mother and next friend of the second to sixth appellants named in the title hereof (hereinafter "the minors") whose application for judicial review was refused in the High Court. In the case of the minors the learned High Court judge granted leave to appeal pursuant to section 5(3)(a) of the Illegal Immigrants Trafficking Act 2000 on the following points of law:-

3 1. Whether the procedures for dealing with an application for asylum pursuant to the Refugee Act 1996 or the pre-existing non-statutory scheme permit the Minister to receive and determine an application for refugee status made by the parent of a minor child (which child accompanies that parent) on the parent's own behalf and on behalf of or including such minor child as the application for asylum of that child either at all or where the parent does not advance or bring to the attention of the Minister any facts or circumstances relevant to that minor separate and distinct from the facts of circumstances relevant to the parent's application.

4 2. Whether in considering an application for asylum made by or on behalf of an accompanied minor the Minister is obliged to consider the application of an accompanied minor in his or her own right separately and distinctly from that of the accompanying parent and whether for that purpose the Minister is obliged to

5 (a) Ascertain the views of the minor and more particularly the fears of the minor related to the application for a declaration of refugee status.

6 (b) Ascertain the capacity of the minor to express his or her views directly and

7 (c) Interview the minor unless such interview would cause unnecessary hardship and trauma on the minor.

The facts

8 The minors are Nigerian nationals who arrived in Ireland on the 10th May 1998 in the company of their mother. They were then aged 12 years 5 months, 8 years 11 months, 6 years 3 months and twins 4 years 3 months respectively. On the 11th May 1998 the next friend applied for asylum and was requested to and did complete a questionnaire. She was interviewed on the 30th May 1999. By letter dated 18th February 2000 she was informed that her application for refugee status had been refused. She appealed against the refusal and on the 25th July 2000 a recommendation was made by the Refugee Appeals Authority, following an oral hearing, that the appeal be dismissed on the basis that the next friend had not satisfied the Authority that she had a well founded fear of persecution on a convention ground. By letter dated 23rd August 2000 the next friend was notified of this recommendation and of the fact that it was being upheld and that the Minister proposed to make a deportation order in respect of her pursuant to the Immigration Act 1999 section 3. She was invited to make any representations as to why she should be allowed to remain in the State within a period of fifteen days. Representations were made on her behalf by her solicitor. By letter dated 1st July 2002 it was confirmed to the next friend and to the minors that the Minister proposed to make a deportation order against each of them in accordance with the Immigration Act 1999, section 3(2)(f) they being persons whose application for asylum had been refused. Up to this date there had been no indication in correspondence or otherwise that the next friend's application was being treated by the Minister as encompassing applications for each of the minors. The letter gave information as to the options open to the next friend and the minors, namely to make written representations as to why they should be allowed to remain temporarily in the State or to leave the State before the deportation orders should be made. Enclosed with that letter were a number of address notification forms, one for the first next friend and one for each of the minors. These were duly completed, signed in each case by the next friend and returned by the next friend's solicitor as requested. By letter dated 8th July 2002 representations were made by the next friend's solicitor: these representations however were merely to repeat representations made on behalf of the next friend in response to the letter of 23rd August 2000 and at a time when the second named applicant had not yet attained the age of sixteen years. By letter dated 9th August 2002 addressed to the next friend and the minors all six were furnished with copies of deportation orders dated 8th August 2002 and requested to present themselves at Trim Garda Station on Friday, 16th August 2002 at 2.30 p.m. to make arrangements for their deportation. By motion returnable on the 10th December 2003 the next friend and the minors sought leave to apply by way of judicial of review for an order of certiorari quashing all six deportation orders. In a reserved judgment of 31st October 2003 Finlay Geoghegan J. refused the next friend leave to apply for judicial review but granted leave to the minors. The ground upon which leave was granted to the minors was as follows:-

"The deportation orders of the 2nd August 2002 relating to the second to sixth named applicants are invalid in that the second to sixth named applicants were not on the date persons whose applications for asylum had been refused by the first named respondent within the meaning of section 3(2)(f) of the Immigration Act 1999."

9 The application failed in the High Court but the learned trial judge certified the points of law cited above.

The Affidavits on the application

10 1. The grounding affidavit.

11 The grounding affidavit was sworn by the minor's solicitor and largely consists of the chronology set out above. However in paragraph 14 thereof he identified a separate well-founded fear of persecution particular to the minors and separate and distinct from that expressed by the next friend on the application and at interview. He did this in the following terms:-

"I am instructed that all the applicants herein fear that because of their race, ethnicity or membership of a social group, they will be subjected to female genital mutilation if returned to Nigeria and that their health and life will be severely impaired and threatened if so returned. I believe that such a procedure would be extremely harrowing and dangerous."

12 He further deposes that the minors did not apply for asylum nor were they...