E.A & Anor -v- Minister for Justice & Anor, 2012 IEHC 371 (2012)

Docket Number:2012 478 JR
Party Name:E.A & Anor, Minister for Justice & Anor
Judge:Hogan J.

THE HIGH COURT JUDICIAL REVIEW [2012 No. 478 J.R.]BETWEEN/E.A. AND P.A. (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND E.A.) APPLICANTSANDMINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTSJUDGMENT of Mr. Justice Hogan delivered the 7th day of September 2012 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. 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 7th 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 19th December, 2006. Ms. O. was previously given a declaration of refugee status on the 4th 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 5th October, 2007 and who is an Irish citizen.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. 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 28th April, 2010. It now seems that he re-entered on the 5th December, 2010, and claims that he returned via the United Kingdom using a British passport arranged with the help of a friend.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. 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 20th 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. 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-Zambrano8. 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 on-going 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 Belgium and, indeed, the territory of the Union itself, thus setting at naught one of the essential elements of European citizenship, namely, the right to live in the territory of the Union.9. Following a reference from the Belgian courts, the Court of Justice held as follows:-“41. As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States... .42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union....43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those...

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