Asibor (A Minor) and Others v Min for Justice

JurisdictionIreland
CourtHigh Court
JudgeMS. JUSTICE M.H. CLARK
Judgment Date02 December 2009
Neutral Citation[2009] IEHC 594

[2009] IEHC 594

THE HIGH COURT

[No. 200 J.R./2009]
Asibor (a Minor) & Ors v Min for Justice

BETWEEN

JUDICIAL REVIEW
OMO EDNA ASIBOR (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND TINA ASIBOR), LILIAN ASIBOR (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND TINA ASIBOR), TINA ASIBOR AND LOVIS ASIBOR
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

AND

ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION
NOTICE PARTIES

OGUEKWE & ORS v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26

IMMIGRATION ACT 1999 S3(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3.1

UN CONVENTION ON THE RIGHTS OF THE CHILD ART 3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.1

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

CONSTITUTION ART 40

CONSTITUTION ART 41

CONSTITUTION ART 42

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 WLR 840 2001 1 FLR 756 2001 2 FCR 63

Abstract:

Immigration - Asylum - Judicial review - Deportation - Test of insurmountable obstacles - Whether the respondent applied an incorrect test in considering whether the first to third named applicants could accompany the fourth named applicant to his country of origin - Whether the respondent identified a substantial reason which required the deportation of the fourth named applicant.

Facts The issues raised in this case were similar to those raised in the case of Mr Kabir Alli [2009 No. 193 J.R.] and the judicial review hearings in both cases were heard together. The applicants herein were granted leave to challenge the deportation order made by the respondent on the grounds that firstly, the respondent failed to apply the correct test in respect of the constitutional and convention rights of the applicants in applying a test of insurmountable obstacles in the context of considering whether the first, second and third named applicants could accompany the fourth named applicant to his country of origin. Secondly, the analysis contained in the record of the respondent's decision did not reflect the principles laid down by the Supreme Court in the case of Oguekwe v. The Minister [2008] I.E.S.C. 25 and Dimbo v. The Minister [2008] I.E.S.C. 26 and in particular did not identify a substantial reason which required the deportation of the fourth named applicant but rather used a formula of words and did not sufficiently weigh and consider facts relevant to the citizen children and the family unit. Lastly, the decision to deport the fourth named applicant was neither proportionate nor reasonable. The fourth named applicant was the father of the first two applicants and the husband of the third named applicant and he arrived in Ireland some three years after the arrival in the State of the third named applicant.

Held by Clark J. in refusing the application:

1. That the conclusions reached in the Alli case on the applicable principles applied equally to this case. The Court found in the Alli case that it was firmly decided by the Supreme Court in A.O. and D.L. that it was not the case that a reason specific to the applicant's circumstances must be identified, and that general policy considerations will suffice as a "substantial reason" provided that the Minister has carried out a fact-specific analysis in the applicants' case and has engaged in a proper balancing exercise. The same "substantial" reason was given in this case and the Alli case and the court rejected the applicants' arguments in relation to that reason in Alli.

2. That the respondent carried out a sufficiently fact-specific analysis, weighed each of the relevant considerations appropriately and balanced them against each other in accordance with the requirements of Oguekwe. The respondent's decision was neither unreasonable nor disproportionate.

Reporter: L.O'S.

1

By order of Feeney J. on the 11 th June, 2009 the applicants were granted leave to apply for an order of certiorari to quash the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated the 27 th January, 2009, to make a deportation order against Mr Lovis Asibor, the fourth named applicant.

2

A similar leave order was previously made by McMahon J. on the 22 nd May, 2009 in the case of Mr Kabir Alli [2009 No. 193 J.R.]. Mr Alli and Mr Asibor are not related but as the two cases raised similar issues the judicial review hearings were heard together at the King's Inns, Court No. 1, over four days in July, 2009. Mr John Finlay S.C. with Mr Michael McNamara B.L. appeared for the Asibor family. Ms Sara Moorhead S.C. with Ms Cindy Carroll B.L. and Mr David Conlan Smyth B.L. appeared for the respondent in both cases.

3

Feeney J. granted leave to the applicants in this case to challenge the deportation order on the following grounds:-

1

) The Respondent failed to apply the correct test in respect of the constitutional and convention rights of the Applicants in applying a test of insurmountable obstacles in the context of considering whether the First, Second and Third Named Applicants could accompany the Fourth Named Applicant to his country of origin.

2

) The analysis contained in the record of the Respondent's decision did not reflect the principles laid down by the Supreme Court in the cases of Oguekwe v. The Minister [2008] I.E.S.C. 25 and Dimbo v. The Minister [2008] I.E.S.C. 26 and in particular did not identify a substantial reason which required the deportation of the Fourth Named Applicant with sufficient clarity but rather used a formula of words and did not sufficiently weigh and consider facts relevant to the citizen children and the family unit; and

3

) The decision to deport the Fourth Named Applicant was neither proportionate nor reasonable.

4

Leave was granted on similar grounds in the case of Mr Alli and there were few differences between the arguments advanced on behalf of Mr Alli and Mr Asibor at the judicial review hearings. Those arguments are analysed at length in the judgment of this Court in the case of Mr Alli which was also delivered today, and the conclusions reached in that case on the applicable principles apply equally to this case. The Court is delivering judgment in the two cases separately in order to avoid confusion between the facts and circumstances of the two families.

Background
5

The applicants in this case are a family in which the third applicant Mrs Tina Asibor is the wife and the fourth named applicant Mr Lovis Asibor is the husband. They are the parents of two daughters, the first and second named applicants, who are minors. Mr and Mrs Asibor were born in Nigeria in 1969 and 1975 respectively and were married in May, 2000 in Nigeria. Their older daughter, Omo Edna, was born on the 16 th December, 2003 in Ireland and is a citizen of Ireland. Her sister Lilian was born on the 28 th February, 2007 in Ireland but because of a change in citizenship law she is not an Irish citizen.

6

Mrs Asibor arrived in the State on the 24 th October, 2003 and made an application for asylum based on a fear of persecution at the hands of the Ijaw tribe in the Delta region of Nigeria. However after she gave birth to Omo Edna, an Irish citizen, two months after arriving in the State she abandoned her asylum claim and instead applied for residency on the basis of that daughter's birth. Her husband was not with her in the State at that time and when she was granted permission to reside in the State under the IBC/05 Scheme for an initial period of two years until the 1 st September, 2007, her husband was not included. The initial period was subsequently renewed for a further three years until the 1 st September, 2010. One of the conditions of the permission to remain in the State was:

"- that you accept that the granting of permission to remain does not confer any entitlement or legitimate expectation on any other person, whether related to you or not, to enter the State."

7

Mr Asibor arrived in the State on the 3 rd December, 2006, that is almost three years after the birth of his older daughter. His claim for asylum was based on a fear of persecution at the hands of the Ijaw tribe in the Delta region in the context of intertribal conflict there. The Refugee Applications Commissioner compared the accounts given by Mr and Mrs Asibor and found material inconsistencies in those accounts. He recommended that Mr Asibor should not be declared a refugee. An appeal against that recommendation to the Refugee Appeals Tribunal was unsuccessful as was a subsequent application for subsidiary protection. On the 31 st August, 2007 the Minister issued a proposal to deport Mr Asibor who then applied for leave to remain in the State on humanitarian grounds.

8

Of some relevance is the fact that when on the 3 rd December, 2006 Mr Asibor arrived at Dublin Airport and claimed asylum, he said that he had not seen his wife for more than three years and had only recently discovered that she was in Ireland. When, earlier this year, an injunction was sought preventing the deportation of her husband, Mrs Asibor claimed that she had been continuously residing in the State since the 24 th October, 2003. However it became apparent that if Mrs Asibor had never left the State and Mr Asibor had not seen her for three years before coming to Ireland, he could not be the father of Lilian, who was born in February, 2007. It was then admitted in an affidavit that Mrs Asibor had been in England...

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