O (O) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 22 October 2008
• Neutral Citation: [2008] IEHC 325
• Court: High Court
• Date: 22 October 2008

[2008] IEHC 325

THE HIGH COURT

[992 JR/2008]

O (O) & Ors v Min for Justice

BETWEEN

O.O. (AN INFANT, SUING BY HIS MOTHER AND NEXT FRIEND CO.), O.E.O. (AN INFANT, SUING BY HER MOTHER AND NEXT FRIEND CO.), O.D.O. (AN INFANT, SUING BY HIS MOTHER AND NEXT FRIEND CO.), C O. AND E. J.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840

OGUEKWE & ORS v MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 14.11.2006 2006/46/9827

OGUEKWE & ORS v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

O (G) & ORS v MIN FOR JUSTICE UNREP HIGH BIRMINGHAM 19.6.2008 2008 IEHC 190

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2004 2 AC 368

IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

G v DPP & ANOR 1994 1 IR 374

DADA v MIN FOR JUSTICE UNREP HIGH O'NEILL 3.5.2006 2006/14/2921

O & ANOR v MIN FOR JUSTICE UNREP HIGH HEDIGAN 9.10.2008 2008 IEHC 307

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

FAJUJONU v MIN FOR JUSTICE 1990 2 IR 151

S (BI) & ORS v MIN FOR JUSTICE UNREP HIGH DUNNE 30.11.2007 2007/54/11584

CIRPACI (ORSE McCORMACK) v MIN FOR JUSTICE 2005 4 IR 109

P & L & B v MIN FOR JUSTICE 2002 1 IR 164

AKUJOBI (A MINOR) v MIN FOR JUSTICE UNREP HIGH MACMENAMIN 12.1.2007 2007/3/555

IMMIGRATION

Deportation

Family rights - Children's constitutional rights - Proposed deportation of grandmother - Proportionality - Alleged failure to expressly consider constitutional rights of children - Alleged failure to apply appropriate proportionality test - Whether 'insurmountable obstacle' test appropriate in cases involving constitutional rights of Irish citizens - Threshold - Scope for review of decision to deport by court - Appropriate proportionality test - Relevance of extant deportation order - Oguekwe v Minister for Justice [2008] IESC 25, (Unrep, SC, 1/5/2008), Dada v. Minister for Justice [2006] IEHC 140, (Unrep, O'Neill J, 3/5/2006), R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Irish Trust Bank Ltd v Central Bank of Ireland [1974] ILRM 50, AO v Minister for Justice [2003] 1 IR 1, Fajujonu v Minister for Justice [1990] 2 IR 150, S v Minister for Justice [2007] IEHC 398, (Unrep, Dunne J, 30/11/2007), TC v Minister for Justice [2005] IESC 42, [2005] 4 IR 109, FP v Minister for Justice [2002] 1 IR 164, CRA v Minister for Justice [2007] IEHC 19, [2007] 3 IR 603 and R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 considered; GO v Minister for Justice [2008] IEHC 190, (Unrep, Birmingham J, 19/6/2008) followed; G v Director of Public Prosecutions [1994] 1 IR 374 applied; OLO v Minister for Justice [2008] IEHC 307, (Unrep, Hedigan J, 9/10/2008) distinguished - Leave refused (2008/992JR - Hedigan J- 22/10/2008) [2008] IEHC 325

O(O) (an infant) v Minister for Justice, Equality and Law Reform

the applicant sought leave to apply for judicial review of the decision of the respondent refusing to revoke the deportation order extant against her grandmother. The applicant complained that her grandmother assisted her mother in rearing her and acted in a parenting capacity and that the respondent failed to consider that her constitutional rights were considered in that regard and that the decision was disproportionate.

Held by Hedigan J in refusing leave to apply for judicial review that the scope for review of a decision not to revoke a deportation order was considerably more limited when it came at the end of a process involving previous consideration of the rights surrounding the proposed deportee. That there was no obligation to consider the constitutional rights of an Irish born child where the proposed deportation related, not to a parent but, to a grandparent. Accordingly, the respondent did not err by making no reference to the children’s constitutional rights, which were very limited in nature given the nature of the familial link involved. The decision balanced the rights of the child against the interest of the State in controlling immigration.

Reporter: P.C.

1 MR JUSTICE HEDIGAN, delivered on the 22nd day of October, 2008

2 1. The applicants are seeking leave to apply for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister") not to revoke a deportation order in respect of the fifth named applicant (E.J.). The applicants are also seeking interlocutory relief.

Factual Background

3 2. E.J. is a national of Nigeria. She is the mother of the fourth named applicant and the grandmother of the first, second and third named applicants ("the applicant children"). The first named applicant is a national of Nigeria who has been resident in the State since 2000. His sister and brother - the second and the third named applicants - are Irish citizens who were born in the State in 2001 and 2004 respectively. The fourth named applicant, who is a national of Nigeria, is the applicant children's mother and E.J.'s daughter. She was granted temporary leave to remain in the State in 2001, under the IBC-05 scheme.

4 3. The children's father left the family in December, 2005. Some two months later, E.J. came from Nigeria to help care for her grandchildren. It is said that her presence has allowed her daughter (the children's mother) to take on the role of breadwinner for the family. It is said that E.J. acts as a carer in a parenting capacity to her grandchildren and has formed a tight family bond with them. It is submitted that her deportation would mean that her grandchildren would be deprived of her care and company as their mother (her daughter) has stated that she does not intend to return to Nigeria with the children even if E.J. is deported.

Procedural Background

5 4. E.J. applied unsuccessfully for asylum upon arriving in the State. Throughout the asylum process, she stated that she had no problem with anyone in Nigeria and that she came to Ireland to mind her grandchildren. Her file was analysed under section 3 of the Immigration Act 1999 and section 5 of the Refugee Act 1996, and a deportation order was signed in May, 2006. Representations that were made on her behalf seeking leave to remain - which made reference to her domestic circumstances - were received only after that date. Her file was analysed again, taking the representations into account. Thereafter, the deportation order was affirmed.

6 5. On 4 ^th September, 2006, an application to permit E.J. to remain in the State was made by letter to the Minister on behalf of the Irish-born applicant children. No reply was received to that letter and proceedings were commenced, alleging that the Minister failed to consider the children's application and seeking an injunction to restrain the deportation of E.J. until that application was considered. No challenge was made in those proceedings as to the validity of the deportation order. The proceedings were compromised on the understanding inter alia that E.J. could apply for revocation of the deportation order, and an application for revocation was duly made in the form of three letters dated 25 ^th April, 1 ^st May, and 13 ^th June, 2008. A number of letters of recommendation, a report on lone-parent families, a medical, report with respect to the children's mother and some country of origin information were enclosed with those three letters in support of the application for revocation.

The Impugned Decision

7 6. On 17 ^th June, 2008, an officer of the Minister's Department analysed the file under section 3(11) of the Immigration Act 1999. The officer expressly refers to the family life that exists between E.J., her daughter and her grandchildren, and she considers E.J.'s rights under Article 3 and 8 of the European Convention on Human Rights. She notes that the children's mother was aware when E.J. began to care for the children that E.J.'s position was precarious and that she had no legal status in the State. When addressing the proportionality of the deportation, she refers to the 'insurmountable obstacle' test set out by the UK Court of Appeal in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840. The officer observes that the family could relocate to Nigeria and live as a family unit there. She gives consideration to the educational situation of the Irish citizen children and to the possibility of their mother being subjected to FGM in Nigeria. Reference is made to country of origin information on Nigeria and it is noted that during the asylum process, E.J. gave no indication of a fear of persecution. Ultimately, the officer concludes that the deportation would be proportionate to the legitimate aim of maintaining control over State borders and operating a regulated immigration system.

8 7. A more senior officer endorsed the above conclusions and recommendations on 16 ^th July, 2008, and the Minister's decision to affirm the deportation order was notified to the applicants by letter dated 20 ^th August, 2008. It is arising out of that decision that the within proceedings were initiated.

THE APPLICANTS' SUBMISSIONS

9 8. The primary complaints made by the applicants in respect of the Minister's decision may be summarised as follows:-

10 a a. Failure to expressly consider the constitutional rights of the children;

11 b b. Failure to apply the appropriate proportionality test.

(a) Consideration of the Children's Constitutional Rights

12 9. The applicants say that the requirements set out in Oguekwe v The Minister for Justice, Equality and Law Reform [2007] IEHC 345 and [2008] IESC 25 apply to the present case...