An O v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 14 October 2009
• Date: 14 October 2009
• Docket Number: [2008 No. 622 JR]
• Court: High Court

AN.O. v. Minister for Justice

AN.O., AM.O., E.O. (a minor suing by his mother and next friend AM.O.), L.O. (a minor suing by her mother and next friend AM.O.) and AE.O. (a minor suing by his mother and next friend AM.O.)

Applicants

and

The Minister for Justice, Equality and Law Reform

Respondent

[2009] IEHC 448

[2008 No. 622 JR]

High Court

Immigration - Deportation - Family rights - Foreign national parent of Irish born child - Step parent of Irish citizen child - Factors to be taken into account when making deportation order - Whether substantial reason for making deportation order - Whether deportation order proportionate - Whether factual matrix considered when making deportation order - Irish Nationality and Citizenship Act 1956 (No. 26), ss. 6A and 6B - Refugee Act 1996 (No. 17), ss. 2 and 5 - Immigration Act 1999 (No. 22), s. 3 - Illegal Immigrants (Trafficking) Act 2000 (No. 29), s. 5 - European Convention on Human Rights Act 2003 (No. 20), s. 3 - Immigration Act 2004 (No. 1), s. 5 -European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, article 8.

The first applicant was a Nigerian national and father of the Irish born fourth and fifth applicants. The second applicant was also a Nigerian national with permission to reside in the State until 2010 and mother of the Irish citizen child, the third applicant and the Irish born fourth and fifth applicants. The first and second applicants married in March, 2007 and the first applicant is the step father of the Irish citizen third applicant. The first applicant was the subject of a deportation order made by the respondent. The applicants sought to quash that deportation order by way ofcertiorari on the grounds, inter alia, that the respondent did not identify a substantial reason for the deportation of the first applicant and that the deportation of the first applicant would interfere with the applicants' right to respect for their private and family life and their home, in breach of article 8 of the European Convention on Human Rights 1950.

Held by the High Court (Cooke J.), in dismissing the application, 1, that the respondent, when considering making a deportation order, required a substantial reason which had to be one associated with the common good and was proportionate to the end sought to be achieved.

Dimbo v. Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008) applied.

2. That the right of the State to control the entry, presence and exit of foreign nationals could not, of itself, constitute a substantial reason in any individual case because it was an abstract reason of a policy of a political or social nature, rather than a specific factor relating to the individual personality of the proposed deportee.

3. That it was necessary to consider the actual reasons advanced by the Minister with a view to assessing whether they fell short of the criteria, or "relevant matters", outlined by the Supreme Court inDimbo v. Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008).

4. That, in considering the "relevant matters", the issue was whether they had been addressed fairly with the result that a proportionate conclusion had been reached.

5. That, in any given case, whether the State's rights would be sufficiently substantial to outweigh the rights of the proposed deportee and his or her family members must depend on the full factual matrix of the particular case, including how long the individuals concerned had been in the State, what roots, if any, they had put down in the State, whether minor children were at school and at what stage of schooling they were at.

Dimbo v. Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008) applied.

6. That the State would always have a substantial and serious interest in maintaining the integrity of its borders and the effectiveness of its immigration system.

7. That the word "substantial" was used in its sense of a reason which had substance and thus as the antonym of "insubstantial" or "inconsequential".

Cases mentioned in this report:-

Bode (a minor) v. Minister for Justice [2007] IESC 62, [2008] 3 I.R. 663.

Dimbo v. Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008).

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

Oguekwe v. Minister for Justice [2008] IESC 25, [2008] 3 I.R. 795; [2008] 2 I.L.R.M. 481.

R. (Mahmood) v. Home Secretary [2001] 1 W.L.R. 840.

Judicial review

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

By order of the High Court (Finlay Geoghegan J.) of the 20th October, 2008, the applicants were granted leave to apply for judicial review seeking an order of certiorari quashing the deportation order made by the respondent on the 6th May, 2008.

The matter was heard by the High Court (Cooke J.) on the 24th April, 2009.

Cur. adv. vult.

Cooke J. 14th October, 2009

[1] By order of Finlay Geoghegan J. of the 20th October, 2008, the applicants were granted leave to apply for, inter alia, an order of certiorari to quash a deportation order dated the 6th May, 2008, made by the respondent against the first applicant. Leave was granted to apply for that order and related reliefs on the basis of the grounds set forth in para. 5 of the statement of grounds then before the court and dated the 28th May, 2008, at subparas. A, B, C, D and E of para. 5.

[2] The applicants have also brought a motion to amend that statement of grounds by the addition of a further ground. Upon the commencement of the hearing the court allowed the amendment with the result that the grounds now before the court are as follows:-

• A. the respondent does not identify a substantial reason for the deportation of the first applicant;

• B. error on the face of the record whereby the respondent states that allowing the first applicant to remain in the State would inevitably lead to similar decisions in other cases where in the instant case a particular and unique set of circumstances apply;

• C. the deportation of the first applicant would interfere with the applicants' right to respect for their private and family life and their home and accordingly, breach article 8 of the European Convention on Human Rights. Such interference is:-

  • (i) not in accordance with laws governing its circumstances, that is the right of parents of European Union and Irish citizens;

  • (ii) not shown to be necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others;

    • D. the respondent has failed to have regard to the duration of the first applicant's residence in the State; ultra vires s. 3(6) of the Immigration Act 1999;

    • E. error on the face of the record whereby the respondent states that the fifth applicant is not an Irish citizen.

[3] The background to the application is as follows and is unusual in that at the outset of the asylum process and before the Refugee Applications Commissioner, the first applicant never claimed to be a refugee and did not assert that he had any fear of persecution if returned to Nigeria. As recorded in the commissioner's s. 13 report of the 24th October, 2006, the first applicant acknowledged that he had never been persecuted in Nigeria and had no fear for himself if returned there. He claimed that he had come to Ireland in October, 2006 to be with the second applicant (his then partner) and his family and he did not want to return to Nigeria because he did not want to leave them. According to the second applicant she met the first applicant in the United Kingdom in "early 2004".

[4] The second applicant is also Nigerian and has been in the State since 2002 and currently has permission to reside here until 2010. She married the first applicant on the 8th March, 2007. The third applicant who was born in the State on the 2nd January, 2003, is her son by a former partner who is not named on the child's birth certificate. The fourth and fifth applicants are the children of the first and second applicants and were born in the State respectively on the 6th July, 2005 and the 3rd May, 2007.

[5] In the s. 13 report of the commissioner dated the 24th October, 2006, the commissioner understandably considered that the first applicant's desire to remain in Ireland with his family was not sufficiently serious to constitute a severe violation of his basic human rights so as to amount to persecution. Nevertheless, a full examination of the background circumstances was carried out which led to the conclusion that the first applicant showed no minimal basis for the contention that the first applicant was a refugee. Section 13(6)(a) of the Refugee Act 1996 therefore applied.

[6] Against this report the first applicant appealed to the Refugee Appeals Tribunal. The notice of appeal as lodged by Messrs. Watters & Co., his solicitors, gave as a basis of the appeal, "the applicant claimed asylum on the basis of fearing persecution in Nigeria from family members of his fiancé" and "we are instructed that the applicant faces the risk of being killed by his fiancé's parents if he returns to Nigeria".

[7] The Refugee Appeals Tribunal decision of the 12th December, 2006, rejected that appeal and held that the basis of the appeal namely, fear of the criminal intentions of his wife's family, did not come within s. 2 of the Act of 1996.

[8] With the covering letter of the 15th May, 2008, from the repatriation unit of the Department of Justice's Irish Naturalisation and Immigration Service sending the first applicant the deportation order, a copy of the file note examining the first applicant's case for the purpose of the order was included and constitutes, in effect, with that letter, the...