O (O)(an Infant) v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton,Mr. Justice Clarke
• Judgment Date: 19 March 2015
• Neutral Citation: [2015] IESC 26
• Court: Supreme Court
• Date: 19 March 2015

O (O)(An Infant) v Min for Justice

An Chúirt Uachtarach

Between/

O.O. (an infant acting by his mother and next friend C.O.) and O.E.O.(an infant acting her mother and next friend C.O.) and O.D.O. (an infant acting his mother and next friend C.O.) and C.O. and Esmé J. (so named for the purposes of this appeal)

Applicants/Appellants

and

The Minister for Justice and Equality

Respondent

O.O (AN INFANT ACTING BY HIS MOTHER AND NEXT FRIEND C.O.) AND O.E.O. (AN INFANT ACTING BY HER MOTHER AND NEXT FRIEND C.O.) AND O.D.O. (AN INFANT ACTING BY HER MOTHER AND NEXT FRIEND C.O.) AND C.O. AND ESMÉ J(so named for the purposes of this appeal).

Applicants/Appellants

and

THE MINISTER FOR JUSTICE AND LAW REFORM

Respondent

[2015] IESC 26

Clarke J.

Laffoy J.

Charleton J.

[Appeal No: 355/2008]

Record number: 992JR/2008

Appeal number: 355/2008

THE SUPREME COURT

Immigration – Deportation order – Right to respect for private and family life – Appellants seeking to appeal against a deportation order – Whether a decision had been arrived at which was not within the competence of the State

Facts: The fifth appellant, Ms Esmé J is the grandmother of the infant appellants and the mother of the fourth appellant. The infant appellants are the fourth appellant”s children. Two of the infant appellants are Irish citizens. The remaining appellants are Nigerian citizens. One of the infant appellants, not an Irish citizen, had reached his majority by the time this appeal was argued. This was an appeal to the Supreme Court by all of the appellants from the decision of Hedigan J refusing leave to the appellants to commence judicial review proceedings on the grounds that a deportation order, issued against the fifth appellant under s. 3 of the Immigration Act 1999, was not properly reconsidered by the respondent, the Minister for Justice and Law Reform, when an application in that regard, was made to him to revoke that order under subsection (11) of that section ([2008] IEHC 325). Ms Esmé J had been deported and had been out of Ireland for six years at the time of this appeal. It was argued that the deportation order had practical consequences for her, particularly having regard to seeking leave to enter the State under s. 4 of the Immigration Act 2004. The rights of the children to the company of their grandmother was asserted under Article 41 of Bunreacht na hÉireann and under Article 8 of the European Convention on Human Rights, and it was argued that no proper regard was had by the respondent Minister to those rights. A challenge to the deportation was made in September 2006. In April 2008, that action was settled by consent of the parties. It was argued on this appeal on behalf of Ms Esmé J that the settlement gave an entitlement to a fresh consideration of the deportation of the applicant as if no representation had previously been made on her behalf.

Held by Charleton J that, having considered the settlement, it was never part of the settlement”s terms that the deportation order should be revoked or would be treated as if it had been revoked; there was nothing to indicate that the settlement constituted some kind of sleight of hand on behalf of the respondent Minister. Charleton J held that the relevant test for leave to commence judicial review to be applied was that set out in Order 84 rule 20 of the Rules of the Superior Courts. Charleton J held that to give leave in this case would be to indicate that there is doubt to be cast upon the level of appreciation that is given to national authorities in considering article 8 cases, particularly where the circumstances of the plea in respect of the person to be deported clearly indicates a misuse of the asylum system and delay consequent upon litigating a refusal to overturn a valid deportation order. Charleton J held that had the consideration of revoking the deportation order not been properly pursued by the Minister, there would have been an ongoing effect on the ability of Ms Esmé J to re-enter Ireland, since the existence of a deportation order may result in refusal of leave to land. Thus, Charleton J held that the case was not moot despite the absence of Ms Esmé J from Ireland over an extended period. Charleton J held that the reanalysis of the issue of deportation was properly done; Ms Esmé J was never a refugee in that she only sought to use the asylum system to remain in Ireland to help her daughter with her children. Charleton J held that the only delay that might possibly have been taken into account in terms of the nature of the balance between the entitlement of the State and the assertion of family rights was entirely created through the exploitation of the asylum process and consequent litigation. Charleton J held that the obligation on a person seeking to overturn a deportation order by representation to the Minister is to make their best case then, and not to seek to make a better case only when leave to commence a judicial review application is sought.

Charleton J held that the appeal should be dismissed.

Appeal dismissed.

1 Judgment of Mr. Justice Clarke delivered the 19th March, 2015.

2 Judgment of Mr Justice Charleton delivered on the 19th of March 2015

3 Judgment delivered by Clarke, J. & Charleton, J.

1. Introduction

4 2 1.1 This is an appeal against a refusal to give leave to seek judicial review in mmigration proceedings. I find myself in disagreement with the judgment to be delivered by Charleton J. in this case in which he proposes to uphold the refusal of leave. The purpose of this judgment is to set out briefly my reasons for concluding that leave should be given.

5 3 1.2 The background to these proceedings and the issues which arise are fully set out in the judgment of Charleton J., and I do not propose to repeat them here save where absolutely necessary. In substance, the fifth named applicant/appellant ("Esmé J.") is the mother or grandmother of the other applicants, She had sought TO challenge a refusal to revoke an order providing for her deportation from Ireland but has since, in fact, been deported. Previous proceedings which raised issues concerning her deportation (but did not challenge the validity of the deportation order itself) were settled on the basis of a fresh consideration of the case. As Charleton J. notes, these somewhat unusual considerations lead to a number of preliminary questions, to which I first turn.

2. Preliminary Questions

6 2 2.1 The first such question which arises is as to whether these proceedings are moot. I agree with the conclusion reached by Charleton J. that they are not. I would only add one further observation. If it were to be the case that a challenge to a deportation order (or, indeed, as here, a challenge to a refusal to revoke same) were always to be considered moot once the relevant deportation had taken place, then this could have a very significant effect on injunction proceedings brought before the High Court. If the consequence, or at least a possible consequence, of a deportation order being put into effect would be to deprive a party of any further opportunity to challenge the validity of the relevant order or a refusal to revoke same, then that factor, in itself, would have to loom very large in determining where the balance of justice lay for the purposes of any interim or interlocutory application. I appreciate that the argument put forward on behalf of the respondent ("the Minister") in this case does not necessarily imply that all such challenges would, in fact, be moot should deportation occur. That does not, however, take away from the concern which I have expressed.

7 3 2.2 The next preliminary question concerns the settlement of the previous proceedings, to which Charleton J. refers in his judgment. It is clear, as Charleton J. points out, that the parties did not agree that the deportation order should be revoked. Rather, they agreed that there should be a fresh consideration of whether that order should continue in force on the basis of such issues as the members of the applicant's family might wish to raise. It is not particularly clear to me as to what was gained by such a settlement, other than the fact that the Minister agreed to make a contribution to costs. Any party affected is always entitled to invite the Minister to consider revoking a deportation order. It does not need the settlement of proceedings to achieve this. Be that as it may the possible relevance of the settlement of those proceedings to the issues which arise in this case is a point to which I will briefly return in the context of the substantive issues which arise.

8 4 2.3 The third preliminary question concerns the threshold which must be met before leave can be granted. There is no dispute over the fact that this is not one of those cases where substantial grounds need to be established, but rather one in which the ordinary test for leave to seek judicial review, as identified in G. v. Director of Public Prosecutions[1994] 11.R. 374, is appropriate. I agree with what is said by Charleton J. on this topic in his judgment. There was some debate at the hearing before us as to whether there might be a difference between an "arguable" case and a prima facie or, indeed, a "stateable" case. I do not consider that there is. Arguable, in that context, means that there are arguments in favour of the case, which the proposed applicant wishes to put forward, which have some prospect of success. It is not, in that context, any different from a prima facie case. Given that Charleton J. makes reference to my judgment in S. and Ors. v. Minister for Justice and Equality[2013] IESC 4, where I referred to "a sufficiently arguable case", I should state that I consider that to be a reference to a case which is sufficiently arguable to meet the test of...