AOM v Minister for Justice and Equality

 
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[2016] IEHC 760

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2015 No. 43 JR]

BETWEEN
A.O.M.
APPLICANT
AND
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENTS

Asylum, Immigration & Nationality – S.3 of the Immigration Act 1999 – Refusal to revoke deportation Certiorari – Need for presence to prosecute court proceedings – Right to access of Courts – O. 39 of the Rules of the District Court – Means for tendering evidence

JUDGMENT of Ms. Justice Stewart delivered on the 11th day of November, 2016.
1

This is an application seeking, inter alia, an order of certiorari in respect of the decision of the respondent made on 3rd December, 2014, to refuse to refuse to revoke a deportation order made against the applicant on 8th January, 2003. The deportation order was made pursuant to s. 3(11) Immigration Act 1999.

Background
2

The applicant is a 34 year old male, who entered the State and made an application for refugee status on 4th September, 2000. On 30th July, 2002, the applicant was informed that the respondent had decided against granting the application and was proposing to make an order for his deportation. Said order was issued on 8th January, 2003, and executed on 20th May, 2004. Following this deportation, the applicant entered the United Kingdom and illegally took up residence in Northern Ireland. He was joined there by an Irish citizen, N.F., with whom he had entered into a relationship during his stay in this jurisdiction. On 24th December, 2005, their child was born and the applicant was granted parental responsibility rights and duties under the Family Law [NI] Act 2001. The family lived together until October, 2007. The following November, the mother (N.F., who has maintained a watching brief over these proceedings) suddenly returned to this jurisdiction. The applicant entered the State soon after, in the hope of seeing his daughter and saving the relationship. These efforts would appear to have been unsuccessful, as the applicant soon instigated guardianship proceedings. These proceedings were to be heard in the District Court on 31st March, 2008. But this hearing did not take place because the applicant had been discovered within the State and, following his failure to secure revocation of his deportation order, he was again deported to Nigeria on 17th December, 2007. The applicant remained in Nigeria before securing employment in the United Arab Emirates (U.A.E.), where he currently resides.

3

On 10th April, 2014, the applicant instructed that fresh legal proceedings be instigated, seeking access to and guardianship of his child. In September, 2014, said proceedings came before the Family Law District Court sitting in Dublin and were adjourned to October in order to facilitate the applicant's attendance in person. When the matter came before the Court again, the proceedings were struck out, allegedly because the applicant was not present to execute them, notwithstanding the presence of his legal team. An application for a visa to allow him to prosecute the proceedings was refused on 17th June, 2014. On 3rd December, 2014, the respondent refused to revoke the deportation order that was preventing his re-entry to this jurisdiction.

Submissions
4

Ms. Blake, S.C., with Mr. Daniyan, B.L. for the applicant, submit seven grounds on which leave to seek judicial review was granted:

A. Failure to pay due consideration for the applicant's right of access to the court: The applicant alleges that his relationship with his child has been entirely frustrated and that he must have access to the courts to see his rights vindicated. The applicant relies on Re Article 26 of the Constitution and Sections 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360 as proof that non-nationals' right to court access and due process is identical to that of a citizen's. He submits that he cannot access the courts until he is allowed to return to the State and relies on the DAR transcript of his previous proceedings as proof thereof. The applicant alleges that the respondent's decision makes contrary findings on this point and is therefore incorrect in fact and in law. The applicant also submits that the impugned decision places an onus on the child to see their rights vindicated, an act that she is incapable of performing due to her age. On that basis, the applicant submits that the decision is unreasonable and irrational.

B. Errors of law and fact as to the applicant's aims: The applicant submits that the respondent made a finding that the applicant would be a burden on State resources. The applicant alleges that this is patently untrue, as he is well remunerated in the U.A.E. and has valid health insurance that would cover a short stay in Ireland. He maintains that his stay would only subsist for the purposes of his court action and maintaining a relationship with his child. It is submitted that any suggestion of permanent residence is conjecture on the respondent's part.

C. Lack of proportionality: The applicant submits that the impugned decision is disproportionate in its consideration of the rights of the child and the familial rights held by the applicant and his child under Bunreacht na hEireann and Article 8 of the European Convention on Human Rights (E.C.H.R.). The applicant also alleges that the respondent applied the wrong test to the facts. He submits that the proper test is not adverse effect on the child's interests. The alleged proper test involves consideration of a child's right to her parents and a parent's rights in relation to child rearing. The applicant relies on A.O. v. Minister for Justice No. 2 [2012] IEHC 79 in asserting that this balancing exercise should be approached from the perspective of Article 40.3 and 42.1 of Bunreacht na hEireann. The applicant also refers to E.A. and P.A. v. MJELR [2012] IEHC 371 and X.A. v. Minister for Justice [2011] IEHC 397 to fortify this point.

D. Failure to properly balance rights: The applicant submits that the respondent failed to give proper weight to the rights of the child and parent when balancing them against the rights of the State. He also alleges that weight was given to matters such as the economic well-being of the State, which are irrelevant given that the applicant has no intention of relying on the State. The applicant again relies on the above three cases.

E. Failure to have proper regard to the rights, welfare or wellbeing of the child: The applicant again relies on the above three cases.

F. Failure to properly appreciate the consequences of the decision: By taking this action, the applicant alleges that he is effectively cut off from his child until she achieves the age of majority, thus ensuring that he never plays a hand in child rearing and that one of his constitutional rights is entirely frustrated. The applicant again relies on E.A. and A.O.

G. Improper application of case law: The applicant submits that the respondent made an error of law and fact in its application of the case of Mahmood v. Home Secretary [2000] EWCA Civ 315. As an English decision, it only holds persuasive value in this jurisdiction. The applicant also alleges that the circumstances in Mahmood are not the same as the circumstances in this case, most particularly because Irish jurisprudence in weighing respective rights is more advanced. The applicant alleges that, by failing to apply relevant and current law, the decision is invalid. The applicant relies on the above three cases in this regard.

5

The applicant acknowledges the series of cases in this jurisdiction that state that a father has no constitutional right to his child ( State (Nicolaou) v. An Bord Uchtala [1966] I.R. 567, G v. An Bord Uchtala [1980] I.R. 32). However, the applicant also points out that he has guardianship and statutory rights, per the Family Law [NI] Act 2001, as amended. He also relies on the case of W.O'R v E.H. [1996] 2 I.R. 248, in which the Supreme Court held that the rights of interest or concern between father and child were matters to be taken into account when considering guardianship/custody/access applications. The applicant refers again to Hogan J.'s judgment in A.O., where he stated:

‘…the active involvement of both parents in child-rearing is also inherently desirable from the child's perspective, even if the parents are not married, assuming always that this is feasible and practicable.’

6

In regard to questions over Article 8, the applicant relies on the cases of Ciliz v. Netherlands (App. No. 29192/95, decision of 11th July, 2000), in which it was established that decision-makers must take rights flowing from Article 8 into account to a degree sufficient to protect those interests. The applicant points out that such considerations persist even where the parent has consistently flouted immigration rules ( Nunez v. Norway (App. No. 55597/09, delivered on the 28th June 2011)).

7

The applicant acknowledges the judgment of the Supreme Court in A.O. and D.L. v MJELR [2003] 1 I.R. 1 in which the State's interests in maintaining the integrity of the immigration system outweighed the children's right to the care and company of their parents within the State. He also notes the ameliorating effect of the Ruiz-Zambrano judgment on these matters. But he focuses more particularly on E.A. and the case of S v. Minister for Justice [2011] IEHC 417. In these cases, the condemnation of a child to a parental absence for the entirety of their formative years motivated the Court to act. The settlement of the family for a significant period of time and the degree of integration with the Irish...

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