AO and DL v Minister for Justice

JurisdictionIreland
CourtSupreme Court
Judgment Date23 January 2003
Docket Number[S.C. Nos. 108 and 109 of 2002]

Supreme Court

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

Cases mentioned in this report:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

T.M. and A.M. v. An Bord UchtálaDLRM [1993] I.L.R.M. 577.

McGee v. Attorney GeneralIRDLTR [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

Moore v. East ClevelandUNK (1977) 431 U.S. 494.

Moustaquim v. BelgiumHRC (1991) 13 E.H.R.R. 802

Murray v. IrelandDLRM [1991] I.L.R.M. 465.

Northampton County Council v. A.B.F.DLRM [1982] I.L.R.M. 164.

North Western Health Board v. H.W.IR [2001] 3 I.R. 622.

O'Keeffe v. An Bord PleanálaIRDLRM [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

Osheku v. IrelandIRDLRM [1986] I.R. 733; [1987] I.L.R.M. 330.

F.P. v. Minister for JusticeIRDLRM [2002] 1 I.R. 164; [2002] 1 I.L.R.M. 16.

Perdido v. Immigration and Naturalisation ServiceECAS (1969) 420 F.2d 1179.

The People v. O'SheaIRDLRM [1982] I.R. 384; [1983] I.L.R.M. 549.

Pok Sun Shun v. IrelandDLRM [1986] I.L.R.M. 593.

Poku v. United KingdomHRC (1996) 22 E.H.R.R. CD 94.

R. v. Brixton Prison (Governor) ex parte, SoblenELRWLRUNK [1963] 2 Q.B. 243; [1962] 3 W.L.R. 1154; [1962] 3 All E.R. 641.

R. (Mahmood) v. Secretary of State for the Home DepartmentWLR [2001] 1 W.L.R. 840.

R. (Yogathas) v. Secretary of State for the Home DepartmentWLRUNK [2002] 3 W.L.R. 1276; [2002] 4 All E.R. 800.

Ryan v. Attorney GeneralIR [1965] 2 I.R. 294.

Schleiffer v. Meyers (1981) 644 F.2d 656.

Schneider v. RuskUNK (1964) 377 U.S. 163.

The State (Bouzagou) v. Station Sergeant, Fitzgibbon St.IRDLRM [1985] I.R. 426; [1986] I.L.R.M. 98.

State (Keegan) v. Stardust Compensation TribunalIRDLRM [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (M.) v. Attorney GeneralIR [1979] I.R. 73.

State (Nicolau) v. An Bord UchtálaIR [1986] I.R. 567.

Vilvarajah v. United KingdomHRC (1992) 14 E.H.R.R. 248.

Z. v. Minister for JusticeDLRM [2002] I.L.R.M. 215.

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.

Appeals from the High Court.

The facts have been summarised in the headnote and are more fully set out in the judgments of Keane C.J., Denham, Murray, McGuinness, Hardiman, Geoghegan and Fennelly JJ., infra.

On the 8th April, 2002, the High Court (Smyth J.) refused the applications for judicial review of the respondent's decision to deport the applicants in both cases.

By notice of appeal filed on the 7th May, 2002, the applicants appealed against the said judgment and orders to the Supreme Court.

The appeal came on for hearing before the Supreme Court (Keane C.J., Denham, Murray, McGuinness, Hardiman, Geoghegan and Fennelly JJ.) on the 22nd and 23rd October, 2002.

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 JusticeIR [1990] 2 I.R. 151 followed;Laurentiu v. Minister for JusticeIR[1999] 4 I.R. 26;North Western Health Board v. H.W.IR[2001] 3 I.R. 622;Osheku v. IrelandIR[1986] I.R. 733; Pok Sun Shum v. IrelandDLRM[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 JusticeIR [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 JusticeIR [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...

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