Animashaun v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 05 June 2003
• Neutral Citation: [2003] IEHC 14
• Docket Number: Record Number: No. 823JR/2002
• Court: High Court
• Date: 05 June 2003

[2003] IEHC 14

THE HIGH COURT

Record Number: No. 823JR/2002

ANIMASHAUN v. MIN FOR JUSTICE

Between:

Oluwaseyi Animashaun

Applicant

AND

The Minister for Justice, Equality and lawReform

Respondent

Citations:

IMMIGRATION ACT 1999 S3

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 3

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 33

EEC REG 1612/68 ART 7.1

EEC REG 1612/68 ART 10.1

MCDONALD IMMIGRATION LAW & PRACTICE 5ED 2001 PAR 7.59

REGINA V IMMIGRATION APPEAL TRIBUNAL EX PARTE GUSTAFF DESIDERIUS ANTONISSESN 1991 2 CMLR 373 C-292/89

AKINYEMI V MIN JUSTICE UNREP SMYTH 2.10.2002 2002/1/128

Synopsis:

IMMIGRATION

Asylum

Injunction restraining deportation - Certiorari - Declaration - Whether applicant had right of residence as spouse of EU citizen exercising European Treaty rights - Regulation (EEC) 1612/68 (2002/823JR - Peart J - 5/6/2003)

Animashaun v Minister for Justice, Equality and Law Reform

The applicant was refused asylum. By notice of motion he sought an injunction restraining his deportation as well as an order of certiorari quashing the decision of the respondent to deport him and a declaration that he was entitled to remain in the State. The applicant argued that he had a right of residence as a spouse of an EU citizen exercising European Treaty rights in Member States.

Held by Peart J. in refusing the relief sought that the applicant's wife was not a worker in the State even within the wider definition of worker. Moreover, notwithstanding adequate opportunity being given to the applicant, no proof that his wife was a worker was submitted.

1 Mr Justice Michael Peartdelivered the 5th day of June 2003

2 The applicant is a Nigerian born national who arrived in the State on26 ^th September 2000. Upon arrival he claimed asylum on thegrounds of persecution for reasons of race. He later completed the usualquestionnaire and attended for interview with the Refugee ApplicationsCommissioner. On the 1 ^st November 2001 he was informed thatthe Commissioner, having examined the case, had concluded that he wasnot entitled to a declaration as a refugee, and the applicant was toldthat it was intended to make a recommendation to that effect. Theapplicant was also informed of his right to appeal that recommendationto the Refugee Appeals Tribunal, and he did so. By letter dated28 ^th February 2002, the applicant was informed that hisappeal was refused. By letter dated 28 ^th March 2002, theapplicant was informed that the Minister had refused to grant him adeclaration of refugee status, and that his entitlement to remain in theState had expired. He was also informed that the Minister intended tomake a deportation order, and of hisright to make representations setting out any reasons why he ought to beallowed to remain in the State.

3 On the 16 ^th April 2002, a Mr O. Illori of Equity Office,Immigration Consultants, of Equity Centre, 91, Parnell Street, Dublin 1,wrote to the Minister on behalf of the applicant, for the purpose ofputting forward reasons as to why the Minister should allow theapplicant to remain in the State pursuant to the provisions of Section 3of the Immigration Act, 1999. Briefly summarized, those grounds are that the applicant, if returnedto Nigeria, would suffer persecution, in breach of his fundamental rightto liberty and security; that it would be in breach of Article 3 andArticle 33 of the 1951 Geneva Convention; that the applicant has fullyintegrated into Irish national and cultural life; that he has committedno offences since his arrival here; that Ireland ought to honour itsobligation not to return a person to a country where persons in thatcountry do not enjoy their fundamental rights to liberty and security;and as set out in ground 6 of the letter, because:

"there has been a change in the status of our client havingbeen married to an EU national who is also a Community worker. He hassince lodged an application for residency as a dependent of an EUnational as provided for in the EU Treaty."

4 That letter appears to have been accompanied by two testimonials, onefrom "Eugene McGrath" dated 17 ^th April 2002. Hesays that he has been the landlord of the applicant "for sometimenow", and another signed on behalf of the Minister in Charge ofChrist International Evangelical Ministry of Christ Apostolic Church, 18Rutland Place, Dublin 1". Both testimonials are on notepaper whichis of the home-made kind, both identical in style, and as far as I amconcerned appear to contain signatures in the same hand-writing. Istress that is simply my opinion from an examination of the signatures,but I mention it in view of certain other doubts which I have inrelation to the bona fides of the paperwork used to support theapplication to the Minister and to this Court, and to which I shallreturn in due course.

5 Mr Illori wrote again to the Immigration and Citizenship Division of theMinister's Department on the 29 ^th April 2002, stating thatthe applicant had married "Beverly Danniel" on the5 ^th March 2002, and attached a copy of a Marriage Certificatewhich in fact shows a marriage to "Beverly Darnell" on thatdate. He went on to apply for residency in the State on behalf of theapplicant, based on a marriage to an EU national.

6 Following these letters the Minister wrote to Equity Consultants on2 ^nd May 2002, stating that the application for residencywould be examined under the provisions of Regulation (EEC) No 1612/68(hereinafter referred to as "the Regulation") which allowsthe spouse and descendants who are under the age of 21 or are adependant of an EU national working in the territory of another memberstate to install themselves with the EU nationals in that Stateirrespective of nationality, and requested certain originaldocumentation to be furnished within 15 days so that they could besatisfied that the applicant qualified under the above Regulation. Thedocuments requested were:

7 1. Accommodation details in the name of the applicant and his wife,namely a Tenancy Agreement/Rent Book;

8 2. Contract of Employment and current payslips in respect of the EUnational;

9 3. Evidence of nationality and identity in respect of both parties(i.e. passports, or in the case of the EEA National, passport ornational identity card);

10 4. Current financial statement (i.e. Bank Statement);

11 5. Two passport-size photographs of both parties;

12 6. Letter from the applicant's community welfare officer, statingwhether he or his wife are in receipt of basic supplementary allowance,or rent allowance.

13 By the 4 ^th June 2002, no reply had been received by theMinister to this request, and so a reminder letter was written, statingthat the requested documentation could be furnished within ten days from4 ^th June 2002. No documentation was furnished.

14 By letter dated 23 ^rd May 2002, the Immigration andCitizenship Division of the Minister's office wrote to EquityConsultants requesting the same documentation so that they could examinethe applicant's application for residency.

15 By letter dated 31 ^st July 2002, the Immigration andCitizenship Division of the Minister's office wrote to EquityConsultants informing them that the applicant's application had beenrefused, and stated that in coming to that decision, it was decided thatthe applicant had failed to provide the originaldocumentation sought in order to show that the applicant's spouse was infact an EU national who is residing and working in the State. They wereinvited to inform the Department if there were any other grounds uponwhich the application could be considered, within fourteen days fromthat date.

16 The applicant was notified by letter dated the 10 ^th September2002 that the Minister intended to make a Deportation Order and he wasinvited to make representations as to why he should be allowed to remainin the State.

17 By letter dated 16 ^th September 2002, Equity Consultants wroteto the Department stating that they were appealing the decision todeport, on three grounds:

18 1. That the applicant was the spouse of an EU national, and that hehad deemed dependent rights flowing from his spouse, who "iscurrently in search of gainful employment in Ireland".

19 2. That he has been residing in the State for more than three yearsand that a legitimate expectation has been created, and that he hasintegrated into society here and has not been involved in any activitieshere which have warranted the "attentions of theState".

20 3. That the right to unity of the family cannot be maintained if theapplicant is deported whilst his spouse remains in the State.

21 With that letter Equity Consultants enclosed a copy of a letter dated17 ^th September 2002 which they wrote on the applicant'sbehalf to the EU Treaty Rights Section of the Minister's office,referring to the earlier application and its refusal on the grounds offailure to furnish documents. In this letter they say that they havealready forwarded the original marriage certificate (which does notappear to be the case), and they also enclose the Passport of BeverlyDarnell, two passport-sized photographs of the applicant and his wife,and letter from the Community Welfare Officer confirming non-receipt ofSocial Welfare benefit by the couple. That letter also states that thereis no record of employment by the couple in the State. They request thatthe application be re-opened.

22 I want to say at this point that the two photographs of the Applicant'sspouse which were furnished, do not appear to me to bear any resemblanceto the photograph of the her on her passport, the originals of which Ihad the opportunity to examine when this matter was before me, evenallowing for the fact that the photograph in the original passport wastaken some five years previously, when Ms. Darnell was 15 years of age.I should also say that she was not in court when the case was heard byme, so I had no opportunity to examine her present appearance with thephotograph recently...