AO and DL v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 23 January 2003
• Date: 23 January 2003
• Docket Number: [S.C. Nos. 108 and 109 of 2002]
• Court: Supreme Court

A.O. & D.L. v. Minister for Justice

A.O. and O.J.O. (a minor suing by his mother and next friend F.O.)

Applicants

and

The Minister for Justice, Equality and Law Reform, Respondent, and D.L., J.L., A.L. and J.L. (minors suing by their father and next friend D.L.) and K.L. (a minor suing by his mother and next friend J.L.), Applicants, v.The Minister for Justice, Equality and Law Reform

Respondent

[S.C. Nos. 108 and 109 of 2002]

Supreme Court

Constitution - Personal rights - Citizens - Family rights - Non-national parents - Child citizens - Right to reside - Right to company of family - Deportation orders - Subsequent birth of Irish citizen prior to deportation - Jus soli - Applicants asserting choice of residence on behalf of Irish born applicant in State - Whether right to company, care and parentage of parents in State absolute and unqualified - Whether grave and substantial reasons associated with common good requiring deportation - Whether respondent in making decision restricted to matters personal to applicants - Whether respondent entitled to have regard to statutory framework and Dublin Convention - Dublin Convention (Implementation) Order 2000 (S.I. No. 343) - Refugee Act 1996 (No. 17) - Constitution of Ireland 1937, Articles 2, 40.3.1, 41, and 42 - Dublin Convention 1990.

Immigration - Non-nationals - Irish born child - Anchor child - Right of Irish born child to remain with family in State - Deportation - Common good - Public policy - Integrity of immigration system - Prohibition on deportation of Irish citizens - De facto deportation - Whether integrity of immigration system justified deportation - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 - Dublin Convention 1990.

The first applicant in the first proceedings arrived in the State with his pregnant wife and their daughter in May, 2001 and applied for refugee status. They had previously been refused refugee status in the United Kingdom.

The first four applicants in the second proceedings arrived in Ireland in March, 2001. The first and second applicants were husband and wife, the latter being pregnant at the time of arrival in the State. They also applied for refugee status.

The applicants in both proceedings were subsequently informed by the Refugee Applications Commissioner that their applications should properly be examined in the United Kingdom pursuant to article 8 of the Dublin Convention as that had been the first convention county in which they had arrived. In each case the decision of the Commissioner was unsuccessfully appealed to the Refugee Appeals Tribunal.

Subsequent to the determination of the Refugee Appeals Tribunal, the applicants in both proceedings received notice that the respondent had signed deportation orders in respect of them. The reasons given by the respondent for making the deportation orders related to the length of time the family in each case had been in the State, the application of the Dublin Convention and the necessity to preserve respect for and the integrity of the asylum and immigration systems.

The wife of the applicant in the first proceedings gave birth to the second applicant after the making of the deportation order. In the second proceedings, the second applicant gave birth to the fifth applicant after the making of the deportation order.

The applicants sought judicial review of the respondent's decisions. As similar issues arose in both proceedings, they were heard in conjunction with each other. The High Court (Smyth J.) refused them relief and they appealed to the Supreme Court.

Held by the Supreme Court (Keane C.J., Denham, Murray, Hardiman and Geoghegan JJ.; McGuinness and Fennelly JJ. dissenting), in dismissing the appeals, 1, that the constitutional right of the Irish born applicant in each case to the company, care and parentage of its parents within the State was not absolute and unqualified.

Fajujonu v. Minister for Justice [1990] 2 I.R. 151 followed;Laurentiu v. Minister for Justice[1999] 4 I.R. 26;North Western Health Board v. H.W.[2001] 3 I.R. 622;Osheku v. Ireland[1986] I.R. 733; Pok Sun Shum v. Ireland[1986] I.L.R.M. 593 considered.

2. That the respondent was obliged to consider whether, in the circumstances of the case, there were grave and substantial reasons associated with the common good which required the deportation of the non-national applicants.

Fajujonu v. Minister for Justice [1990] 2 I.R. 151 followed.

3. That, in so doing, the respondent was not restricted to taking into account only those matters which were personal to the non-national applicants which would render their continued residence inimical to the common good, but could also take into account policy considerations which would arise from allowing a particular applicant to remain which would inevitably lead to similar decisions in other cases.

Fajujonu v. Minister for Justice [1990] 2 I.R. 151 followed.

Per Hardiman J. (Geoghegan J. concurring): That the respondent was entitled to have regard to the State's general policy in relation to immigration and specifically to asylum seekers; to the jurisprudence on the same subject as it evolved; to the volume of persons seeking asylum and the social and economic demands which this imposed; to changing patterns in this volume; to the matters he was required by statute to consider including the length of time a particular person had been in the State and his or her family or domestic circumstances; to the constitutional rights of all persons, including the Irish born child and the State itself; to the requirement of a coherent and efficient immigration and asylum system; to the State's international obligations; to the number of citizen children and any changing patterns in their incidence; to their effect on the operation of the asylum system; to the making of previous applications for asylum elsewhere; to the results of such applications and the subsequent arrival here of families which came to include an Irish born child all had implications for the integrity of the asylum and immigration system and the State's international obligations with regard thereto.

4. That, in deciding whether to deport the non-national applicants, the respondent was entitled to have regard, inter alia, to the legislative scheme at present obtaining in the State and to the fact that the State was a party to the Dublin Convention.

Per McGuinness J. dissenting: That it was questionable whether the respondent could rely on the general necessity to ensure respect for the integrity of the asylum and immigration systems in a case where the constitutional rights of an Irish citizen were at stake.

Per McGuinness and Fennelly JJ. dissenting: That the fact that the State was a party to the Dublin Convention did not justify the respondent in deporting the non-national applicants.

5. That pursuant to the provisions of the Dublin Convention, the United Kingdom was the proper country where the applicants' applications for asylum were to be decided. Therefore, the respondent was entitled to make orders deporting the applicants to the United Kingdom, even though the consequence was that in order to remain as a family unit the members of the family, including Irish citizens, in respect of whom no deportation orders had been made, might also have to leave the State.

Fajujonu v. Minister for Justice [1990] 2 I.R. 151; The Illegal Immigrants (Trafficking) Bill, 1999[2000] 2 I.R. 360; Laurentiu v. Minister for Justice[1999] 4 I.R. 26;North Western Health Board v. H.W.[2001] 3 I.R. 622;Osheku v. Ireland[1986] I.R. 733;Pok Sun Shun v. Ireland[1986] I.L.R.M. 593 considered.

Per McGuinness and Fennelly JJ. dissenting: That the reasons given by the respondent to justify the deportation of the non-national applicants could not prevail over the Irish born childrens' constitutional right to the company, care and parentage of their parents in the State.

Quaere: Whether the courts were confined to the function set out in O'Keeffe v. An Bord Pleanála[1993] 1 I.R. 39 in judicial review of ministerial decisions concerning interference with fundamental constitutional rights?

Cases mentioned in this report:-

Abdulaziz v. United Kingdom (1985) 7 E.H.R.R. 471.

Acosta v. Gaffney (1977) 558 F.2d 1153; 42 A.L.R. Fed. 915.

Adan v. Secretary of State for the Home Department [1999] 1 A.C. 293; [1998] 2 W.L.R. 702; [1998] 1 All E.R. 453.

Adam v. Minister for Justice [2001] 3 I.R. 53; [2001] 2 I.L.R.M. 452.

The Adoption (No. 2) Bill, 1987 [1989] I.R. 656; [1989] I.L.R.M. 266.

Anisimova v. Minister for Justice [1998] 1 I.R. 186; [1998] 1 I.L.R.M. 523.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680; [1947] W.N. 1290.

Beljoudi v. France (1992) 14 E.H.R.R. 801.

Boultif v. Switzerland (2001) 33 E.H.R.R. 50.

Cassidy v. Minister for Industry and Commerce [1978] I.R. 297.

Chaulk v. R. [1990] 3 S.C.R. 1303.

Cooke v. Walsh [1984] I.R. 317.

Cox v. Ireland [1992] 2 I.R. 503.

Crotty v. An Taoiseach [1987] I.R. 713; [1987] I.L.R.M. 400.

T.D. v. Minister for Education [2001] 4 I.R. 259.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

M.F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189; [1990] I.L.R.M. 767.

Fajujonu v. Minister for Justice [1990] 2 I.R.151; [1990] 1 I.L.R.M. 234.

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

Gonzalez-Cuevas v. Immigration and Naturalisation Service (1975) 515 F.2d 1222.

Gul v. Switzerland (1996) 22 E.H.R.R. 93

J.H. (inf.) [1985] I.R. 375; [1986] I.L.R.M. 65.

Heaney v. Ireland [1994] 3 I.R. 593; [1994] 2 I.L.R.M. 420.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

Kent v. Dulles (1957) 248 F.2d 600.

Kweder v. Minister for Justice [1996] 1 I.R. 381.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26; [2000] 1 I.L.R.M. 1.

T.M. and A.M. v. An Bord Uchtála...