E.A. and Another v Minister for Justice and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 07 September 2012
• Neutral Citation: [2012] IEHC 371
• Court: High Court
• Date: 07 September 2012

[2012] IEHC 371

THE HIGH COURT

[No. 478 J.R./2012]

A (E) & A (P)(An Infant) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN/

E.A. AND P.A. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND E.A.)

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

OBOH v MIN FOR JUSTICE & ORS UNREP HOGAN 2.3.2011 2011/43/12389 2011 IEHC 102

O (A) v MIN FOR JUSTICE (NO.2) UNREP HOGAN 17.1.2012 2012 IEHC 79

CONSTITUTION ART 42.1

RUIZ-ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI 2012 1 QB 265

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

O (A) v MIN FOR JUSTICE UNREP HOGAN 17.1.2012 2012 IEHC 79

CONSTITUTION ART 41

CONSTITUTION ART 42

H (J)(AN INFANT), IN RE 1985 IR 375

ALLI v MIN FOR JUSTICE 2010 4 IR 45

S (B) & ORS v MIN FOR JUSTICE UNREP CLARK 13.10.2011 2011/45/12744 2011 IEHC 417

I (K) v MIN FOR JUSTICE UNREP HOGAN 22.2.2011 2011/26/6999 2011 IEHC 66

A (X)(AN INFANT) v MIN FOR JUSTICE UNREP HOGAN 25.10.2011 2011/1/192 2011 IEHC 397

KADRI v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 10.5.2012 2012 IESC 27

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-77 ILRM 50

WORLDPORT IRL LTD (IN LIQUIDATION), IN RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1

U (H) & ORS v MIN FOR JUSTICE UNREP CLARK 29.9.2010 2010/50/12611 2010 IEHC 371

Judicial Review - Asylum - Deportation - Interlocutory injunction restraining deportation - Application for subsidiary protection refused - Deceptive conduct of applicant - Constitutional rights - Irish citizenship of child - Family unit - Care and company of parents

Facts: The first named applicant ("Mr. A"), a Nigerian national was the father of the second applicant P, an Irish citizen. Mr. A applied for asylum upon entering the country in June 2005. Mr. A subsequently married a fellow Nigerian the following year. P was born some time later in the state. Mr. A's asylum application was rejected both at first instance and on appeal due to concerns about the credibility of his claim. Mr. A's subsidiary protection application was also rejected after it emerged he had lied about his country of origin and background. After being deported Mr. A re-entered the country in 2010. Mr. A had also separated from the mother of his child despite suggesting to officials that the three lived together as a family unit.

Mr. A subsequently sought leave for judicial review seeking an interlocutory injunction to prevent his second deportation, on the basis that he had a close relationship with P and the welfare of the child was paramount on the case, notwithstanding Mr. A's previous conduct. The respondent contended that the deception in this conduct was such to preclude any possibility of relief for him.

Held by Hogan J that if Mr. A was deported, P would not be under pressure to leave the State as his mother had not only separated from his father but also had her own refugee status. As such, there would be no jeopardy to P's enjoyment of his European citizenship. Ruiz Zambrano v Office National de l'Emploi (ONEm) (Case C-34/09) [2012] QB 265 distinguished

However, P also had a constitutional right to being in the care of his parents and that if Mr. A was deported, it was unlikely they would have any meaningful contact during P's minority. As such, there would be a clear breach of P's constitutional right if this scenario occurred therefore, in the circumstances, an interlocutory injunction was necessary.

1 1. This application for an interlocutory injunction presents again in acute form the difficult dilemma which has confronted both officialdom and the courts on numerous occasions in the last decade or so, namely, how should the constitutional rights of a young child to the care and company of his parents be weighed against the interests of the State in effective immigration control and the general integrity of the asylum system?

2 2. The first named applicant, E.A, ("Mr. A."), is the father of the second named applicant P.A. ("P"). Mr. A. entered the State on the 7 ^th June, 2005 and applied for asylum on the following day. He was later to marry a fellow Nigerian national, Ms.E.O. ("Ms. O.") in the State on the 19 ^th December, 2006. Ms. O. was previously given a declaration of refugee status on the 4 ^th April, 2005 and is a qualified nurse. Mr. A. and Ms. O. are the parents of P., who was born in the State on the 5 ^th October, 2007 and who is an Irish citizen.

3 3. In his asylum application Mr. A. had claimed to be a Sudanese national and he further claimed his father was dead, but that his mother and siblings were resident in the Sudan. He had contended that he had fled from the Janjaweed militia who had attacked his village on several occasions and as a result of which his father had died. The asylum claim failed before the Refugee Applications Commissioner and on appeal before the Refugee Appeals Tribunal. In the course of the appeal the Tribunal member had expressed serious reservations about the credibility of the claim with regard to Sudanese nationality and found that it was unlikely that the first named applicant was Sudanese.

4 4. It is hardly a surprise that against that background the Minster refused to grant Mr. A. a declaration of refugee status, but the applicant then applied for subsidiary protection and for application for leave to remain pursuant to the Immigration Act 1999. It then emerged in correspondence emanating from the applicant's solicitor in September 2009, that Mr. A. was in fact born in Nigeria and is entitled to Nigerian citizenship. While Mr. A. had claimed that his father was a Sudanese national and that he feared that his father was dead, the declaration supplied by Mr. A's father to the Minister not merely shows that these fears were not well founded, but that Mr. A.'s father is in fact also a Nigerian national. On that basis, therefore, that application for subsidiary protection was rejected in December 2009. Mr. A. was actually deported from the State on the 28 ^th April, 2010. It now seems that he re-entered on the 5 ^th December, 2010, and claims that he returned via the United Kingdom using a British passport arranged with the help of a friend.

5 5. The parents have been separated since September 2008 and a formal decree of judicial separation was granted by the Circuit Court in November 2011. P lives with his mother in Dublin and Mr. A resides in Galway. At the same time, Mr. A. claims that he has a close bond with his son and they meet at least once week. Indeed, the presence of his son in Ireland is the reason why Mr. A. states that he took the wholly unlawful step of returning to Ireland in open defiance of the deportation order which excluded him from this State. At the same time, it would not appear that Mr. A, is in a position lawfully to support his son financially. Nor can there by any realistic suggestion that P will leave either Ireland or, for that matter, the territory of the European Union, were his father to be deported afresh. After all, Ms. O has refugee status and P. is himself an Irish citizen.

6 6. A further consideration is that Mr. A. has engaged in a manifest deception of the Minister and his officials. Although the couple separated in September 2008, the Minister was not informed of his fact. On the contrary, Mr. A. frequently represented to the Minister that they were living together as a family unit. Thus, for example, on 20 ^th April 2009 the applicant's solicitors wrote to the Minister informing him that the "couple and their son live together as a family unit." It is not disputed but that Mr. A. engaged in such egregious deception because he thought that he would have a better chance of securing a more favourable decision from the Minister.

7 7. There is no question at all but that if one looked at this matter from the perspective of Mr. A.. his outrageous conduct would have plainly disentitled him to any prospect of relief. There is no doubt whatever but that the State's interest in deterring such unlawful behaviour is very high. Here again, however, the court must, unfortunately, shut its eyes to his illegal and deceitful conduct in the higher interests of protecting the welfare and interests of the child: see, e.g., my own judgments in Oboh v. Minister for Justice, Equality and Law Reform [2012] IEHC 102 and AO v. Minister for Justice and Equality (No.2) [2012] IEHC 79. While the preservation of the integrity of the asylum system and, indeed, the integrity of the judicial process are of vital importance, in matters of this kind the court must, where possible, give primacy to the constitutional right of the child to the care and company of his parents in the manner envisaged by Article 42.1 of the Constitution. But before considering this issue, it is necessary first to consider the arguments advanced based on the decision of the Court of Justice in Case C-34/00 Ruiz-Zambrano [2011] E.C.R. I-000.

The arguments based on Ruiz-Zambrano

8 8. In Ruiz-Zambrano the applicants were a Columbian couple residing in Belgium, the second and third of whose children were Belgian. Their asylum application in Belgium had been unsuccessful, although the Belgian authorities could not return them to Colombia by reason of the risks to their safety presented by the ongoing civil conflict in that country. Although the father of the children had previously been working and had paid social security contributions in Belgium, he was refused unemployment benefit by reason of his illegal status. Critical to the issues in the case was that the second and third children had Belgian citizenship and, accordingly, were European citizens for the purposes of Article 20 TFEU. The applicants argued that if the father could not obtain the benefit of social security contributions, the children would be obliged to leave...