O.E. and A.H.E. (an infant suing by his father and next friend O.E.) v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Irvine
• Judgment Date: 04 March 2008
• Neutral Citation: [2008] IEHC 68
• Docket Number: [2006 No. 371 JR]
• Date: 04 March 2008

[2008] IEHC 68

THE HIGH COURT

[No. 371 J.R./2006]

E (O) & E (A H) v MIN FOR JUSTICE

[2008] IEHC 68.

JUDICIAL REVIEW

BETWEEN

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

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3(6)(C)

IMMIGRATION ACT 1999 S3(11)

RSC O.60 r2

SHUM v IRELAND & ORS 1986 ILRM 593 1986/4/1484

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 41

CONSTITUTION ART 41.2.2

CONSTITUTION ART 40.3.3

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

BODE v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 62

CONSTITUTION ART 40.3.2

EIGHTH AMENDMENT OF THE CONSTITUTION ACT 1983

G v BORD UCHTALA 1980 IR 32

FINN v AG & ORS 1983 IR 154

B v ISLINGTON HEALTH AUTHORITY; DE MARTELL v MERTON & SUTTON HEALTH AUTHORITY TLR 25.3.1992

NICOLAOU, STATE v BORD UACHTALA 1966 IR 567

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

CONSTITUTION ART 42

CONSTITUTION ART 42(a)

OSHEKU v IRELAND 1986 IR 733

CONSTITUTION ART 40.3

OSAYANDE & LOBE v MIN JUSTICE 2003 1 IR 1

FAJUJONU v MIN JUSTICE & ANOR 1990 2 IR 151

IRISH NATIONALITY & CITIZENSHIP ACT 1935

AG v DOWSE 2007 1 ILRM 81 2006 IEHC 64

COSMA v MIN FOR JUSTICE UNREP SUPREME 10.7.2006 2006/12/2419 2006 IESC 44

IMMIGRATION

Deportation order

Revocation - Birth of child imminent - Refusal to revoke deportation order - Constitution - Constitutional rights of unborn - Nature of such rights - Whether application for revocation of deportation order imposes obligation to consider constitutional rights of unborn infant of proposed deportee - Nature and extent of inquiry required to be made - Whether inquiry conducted in compliance with respondent's statutory and constitutional obligations - Whether respondent obliged to reconsider deportation order - G v An Bord Uchtála [1980] IR 32, Osheku v Ireland [1986] IR 733 and TD v Minister for Education [2001] 4 IR 259 considered; Bode v Minister for Justice [2007] IESC 62 (Unrep, SC, 20/12/2007) and Fajujonu v Minster for Justice [1990] 2 IR 151 applied; B v Islington Health Authority [1993] QB 204 and Attorney General v Dowse [2006] IEHC 64 [2006] 2 IR 507 considered - Immigration Act 1999 (No 22), s 3(11) - Constitution of Ireland 1937, Articles 40, 41 and 42 - Relief granted; respondent directed to reconsider deportation order (2006/371JR - Irvine J - 4/3/2008) [2008] IEHC 68

E(O) v Minister for Justice

Facts: The decision of the respondent to deport the Nigerian national father of an Irish child was alleged to have failed to take into account the constitutional rights of the then unborn child and now second applicant. The applicants sought an order directing the respondent to reconsider the deportation order made in respect of the applicants and an injunction to prevent the proposed deportation. The issue arose as to what the Minister was mandated to consider in exercising his powers.

Held by Irvine J. that the applicants enjoyed constitutional rights requiring vindication. The applicant had discharged the onus of proof to establish the type of inquiry that the impending birth of the second applicant had established. An order would be made directing the respondent to reconsider the deportation order made. An injunction would be granted to maintain the status quo.

Reporter: E.F.

1 Ms. Justice Irvine on the 4th day of March, 2008

2 This judgment is circulated in redacted form to avoid identification of the parties

3 The applicant in these proceedings was born in Ireland on the 24 ^th March, 2006. The applicant's father, O. E., is a Nigerian national, who was born on the 10 ^th January, 1985. The applicant's mother ("AH") is an Irish citizen, who was born on the 4 ^th June, 1986 and who at all times has resided in Ireland.

4 The within proceeding arise as a result of a refusal by the respondent on the 15 ^th March 2006 to revoke a deportation Order which he had earlier made in respect of the applicants father on the 14 ^th March 2006. In making his said decision the respondent was exercising the Statutory powers afforded to him under s. 3 of the Immigration Act 1999 ("the Act"). The applicant was granted leave by the High Court to apply for judicial review in respect of that decision on the 7 ^th July 2007.

Historical Background

5 O. E. came to Ireland as an unaccompanied minor of 17 years of age on 26 ^th February, 2002. O.E. thereafter applied for refugee status on 14 ^th March, 2002 but was not granted asylum notwithstanding an appeal to the Refugee Commissioners.

6 On 21 ^st January, 2005 a deportation order was signed by the respondent and O.E. was deported back to Nigeria on the 14 ^th March 2005. O.E. has maintained that following his deportation, he was detained and imprisoned in Lagos where he alleges he was alone and without support. At all times O.E. has contended that his father was shot on religious ground in Nigeria and that thereafter he became dislocated from his mother and extended family.

7 As a result of significant media controversy and in particular petitions by his schoolmates from Palmerstown Secondary School, the respondent on 24 ^th March, 2005 revoked the deportation order and permitted O.E. to return to Ireland on a study visa with permission to remain until 30 ^th September, 2005 so as to complete his Leaving certificate. Accordingly, O.E. arrived back in Ireland on the 1 ^st April, 2005.

8 The affidavits in this application suggest that the applicant's father started dating AH in early April 2005 and that following four months of that relationship AH became pregnant with an unplanned pregnancy. On the 1 ^st September, 2005 O.E. was notified that his permission to remain in Ireland was due to expire on the 30 ^th September, 2005 and he was invited to make representations regarding his status. On the 15 ^th September, 2005 O.E.'s solicitors sought an extension of time to deliver submissions on his behalf and by letter dated the 23 ^rd September, 2005 O.E. was granted until the 14 ^th October, 2005 to make representations. Further O.E.'s visa was extended for an additional period of twenty eight days.

9 On the 28 ^th October, 2005 O.E.'s solicitors made representations to the respondent. Included within that submission was an assertion that O.E. would not be safe if repatriated to Nigeria and that he would be persecuted. Humanitarian reasons were also advanced on behalf of O.E. and significant emphasis was placed upon the extent of his connections with Ireland at that time.

10 By letter dated the 3 ^rd November, 2005 the respondent sought confirmation that the submissions made on behalf of O.E. were complete and a letter on the 4 ^th November, 2005 from O.E. solicitors confirmed that this was so. It is common case that O.E.'s solicitors made no mention of AH or her pregnancy. At that time AH, it is asserted, had not advised her parents of the pregnancy and consequently O.E.'s solicitor made no disclosure of these facts in the representations made on his behalf. Included with the submissions was O.E.'s own life story written by him setting out details of his life in Nigeria prior to arriving in Ireland as an unaccompanied minor, his account of what occurred following his deportation to Nigeria in March 2005, and details of his plans to study and support himself through further education in Ireland. No mention was made of any relationship with AH.

11 A chronology of the events leading up to the decision the subject mater of these judicial review proceedings is set out in the memorandum of Amanda Carolyn, Clerical Officer to the Repatriation Unit of the department dated the 8 ^th March 2006 and which memorandum is exhibited at "EO 2" in O.E.'s Affidavit. This exhibit reveals that on the 20 ^th January, 2006 the respondent decided to reject the submissions made on behalf of O.E. and he was immediately by letter of the 24 ^th Jan 2006 notified of this fact. He was also advised of the Minister's reasons for his proposed deportation. The reasons given were:-

12 1. The original permission to remain in the State was for the purpose of having an asylum application processed and that this was unsuccessful.

13 2. That following initial deportation O.E. was readmitted to the State to complete his Leaving Certificate and that this had been achieved.

14 3. That he had not been in compliance with the laws of the State that he had not been in compliance with the laws of the State in that he had been convicted of a number of minor road traffic offences.

15 4. That to grant O.E. permission to remain would be contrary to the common good in that it would have implications for the integrity of a coherent and efficient immigration and asylum system.

16 In the same letter O.E. was invited to make further submissions within fifteen days.

17 On the 10 ^th February, 2006 O.E.'s solicitors, Colgan and Company, made further representations pursuant to s. 3 of the Act. The form furnished by the Department of Justice, Equality and Law Reform, referred to as the Section 3 Form 1, is pre-printed and sets out each of the factors to which the respondent must have regard in reaching a decision under s. 3(6). The Form provides space for inclusion by the applicant of information relevant to each of the considerations referred to in the Section includes the applicant's "family and domestic circumstances". In dealing with the detail of his "family and domestic circumstances" it was stated on behalf of O.E. that he was in a relationship with an Irish citizen and that his deportation would have adverse consequences for both of them. AH's name was not mentioned nor was any further detail given regarding her pregnancy or the consequences which were likely to ensue should deportation be...