Ayeni & anor -v- The Minister for Justice and Equality & ors, [2016] IEHC 487 (2016)

Docket Number:2015 88 JR
Party Name:Ayeni & anor, The Minister for Justice and Equality & ors
 
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THE HIGH COURT

JUDICIAL REVIEWIN THE MATTER OF THE IMMIGRATION ACT, 2004, AS AMENDED,

AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, AND IN THE MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS 1986 – 2011 AND IN THE MATTER OF BUNREACHT NA hÉIREANN[2015] No. 88 J.R.

BETWEEN

ADEBAYO DAVID AYENI AND AYOFE OLUWAFEMI ADOYEBIAPPLICANTSAND

THE MINISTER FOR JUSTICE, EQUALITY AND IRELAND AND THE ATTORNEY GENERALRESPONDENTS

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 29th day of July, 2016

  1. By notice of motion of the 20th February, 2015, the applicants seek leave to apply for judicial review of decisions refusing the applicants permission to land in the State on the 3rd November, 2012. The applicants apply for an extension of time within which to apply for leave to seek judicial review. The respondents have issued a motion for security for costs.

  2. The applicants were refused permission to land pursuant to s. 4(3)(k) of the Immigration Act 2004 on the 3rd November, 2012.

  3. S. 5(1)(dd) of the Illegal Immigrants (Trafficking) Act, 2000 as inserted by s. 16(b) of the Immigration Act, 2004 provides that such decisions may only be challenged by judicial review commenced within fourteen days of the notification of the decisions which the applicants accept happened in the airport on the 3rd of November 2012. These proceedings should have issued on or before the 17th of November, 2012, and are out of time. An extension of time is required.

    Background

  4. The applicants arrived for holiday from Nigeria in Dublin airport on the 3rd November, 2012, on a flight from Frankfurt. The applicants showed their passports to a member of the Garda National Immigration Bureau. The passports contained valid Irish visas. The Garda interviewed the applicants. For reasons which will be set out later, the Garda refused permission to land pursuant to s. 4(3)(k) of the Immigration Act 2004 and notices to this effect were presented to the applicants on that date. The notices recorded that:-

    “There is a reason to believe that the non-national intends to enter the State for purposes other than those expressed by the non-national.”

    The applicants returned to Nigeria immediately.

  5. On the 15th November, 2012, Edewale Fajana and Co. (“Attorney and Solicitors”) wrote to the Ambassador at the Embassy of Ireland in Abuja, Nigeria in respect of the events at Dublin airport. The letter is entitled:-

    “APPEAL TO LIFT THE DECISION OF REFUSAL OF PERMISSION TO LAND MADE AGAINST ATOYEBI AYOFE AND ADEBAYO DAVID AYENI.”

    In its opening passage the letter requests the Ambassador “[to]… consider this appeal by our clients and lift the unjustifiable and baseless decisions of the refusal of permission to land… on the basis of the facts and arguments canvassed below.”

  6. The letter is of considerable length with sections entitled “background facts”, “arrival, questioning and intimidation”, “detention and torture”, “arbitrary deportation”, “loss of funds and expenses”, “mutilation of international passports” and the last section is entitled “our appeal.” The letter states:-

    “We have the firm instruction of our clients to appeal to you that you will use your good office to investigate this unfortunate incident

    We request that you use your good office to investigate and vitiate or lift the denial or refusal of permission to enter into the Republic of Ireland … and… that appropriate response is made to our Clients in this regard without delay.

    We also request that any negative report or restrictions placed on our clients in your records be immediately removed.

    Please note that our Clients will pursue this redress to a meaningful conclusion and will engage the Nigerian Ministry of Foreign Affairs and the Media if need be to ensure that such inhuman treatments are not meeted to our Clients or any other Nigerian nationals amongst others.

    We will expect your response within 14 days...”

  7. The Irish embassy in Nigeria replied on the 18th December, 2012, stating:-

    “I write to confirm receipt of your complaint dated 15th November, 2012, alleging misconduct by a member of the Garda Síochána (police) on immigration service duties at Dublin Airport. Please be advised that the Embassy has forwarded your complaint to:

    General Immigration Section,

    Irish Naturalisation and Immigration Service (INIS).

    General Immigration will investigate the allegations. … They will revert to you directly on the result of his investigation.

    Alternatively, if you wish to pursue this issue yourself you may forward a complaint to the Garda Ombudsman …”

  8. Neither the applicants, their Nigerian lawyers, nor the Irish authorities took any further steps arising from this correspondence in the fifteen months that followed.

  9. On the 12th March, 2014, C.N. Doherty and Co. solicitors wrote to the Irish Naturalisation and Immigration Service. The letter is headed “Appeal to Lift the Decision of Refusal or [sic] Permission to Land made against [the applicants].” That short letter calls upon I.N.I.S. to “inform us forthwith as to when you will be making a decision in respect of this matter”

  10. A reply was received by letter of the 19th March, 2014, and an official explained that the reason leave to land was refused in respect of the applicants was that a credit card had been declined in connection with the accommodation booked at a hotel and that the applicants had “no idea of Ireland or what [they] would be doing when here” and that was reason that the official at the airport decided that “there is reason to believe that the non-nationals intends to enter the State for purposes other than those expressed by the non-national.” The letter states:-

    “In all the circumstances we are satisfied that the Immigration Officers acted correctly in refusing leave to land in both cases.”

  11. Almost four months later the applicants in the instant proceedings applied ex parte for leave to quash “the decision of the Respondent of the 19th day of March, 2014, to refuse to grant or overturn a ‘Leave to Land’ decision in respect of the applicants pursuant to s. 4 of the Immigration Act 2004.” Other reliefs were also sought. An ex parte application for leave to seek judicial review was made in respect of these proceedings on the 7th July, 2014. The applicants were granted leave to seek judicial review by this court and the proceedings were returnable by the 20th October, 2014.

  12. These earlier proceedings were grounded on affidavits of the applicants dated 6th June, 2014. No averments therein supported an application for an extension of time.

  13. By notice of motion filed on 4th December, 2014, the respondents sought an order setting aside the grant of leave made ex parte on 7th July, 2014.

  14. On 26th January, 2015, this court set aside its decision of 7th July, 2014, and the judicial review proceedings were dismissed. This court decided that the judicial review proceedings had not been instituted in accordance with s. 5 of the Illegal Immigrants (Trafficking) Act (2000) as amended The court granted the applicants liberty to issue and serve a fresh notice of motion for leave to seek judicial review and to apply for extension of time.

  15. The present judicial review proceedings resulted and were commenced by issuing and serving a notice of motion on 20th February 2015. Leave to challenge the “refusal to land” decisions of 3rd November, 2012, is sought, unlike the earlier proceedings which challenged the much later decision of 19th March, 2014, affirming those earlier decisions. The applicants did not swear affidavits in this new proceeding.

  16. An extension of time is now sought and it is pleaded at para. 5D of the statement required to ground judicial review that: -

    “There are good and sufficient reasons to extend time to apply for Judicial Review. By far the greater part of the delay in attributable to the Respondents failure to address the prompt representations made to them by the Applicants legal representatives in Nigeria and to further fail to accord with their undertaking given in writing to respond to those representations. The Applicants legal representatives in the state are acting for persons resident in a distant foreign jurisdiction. They have been required to communicate and to take instructions and to advise and to prepare to convey pleadings on a transcontinental basis and without the benefit of personal consultation. Further any delay is not attributable to the Applicant’s fault.”

    Colum Doherty, Solicitor, has sworn an affidavit in the present proceedings in which he says that the applicants instructed him. He does not indicate when the instructions were given. He says that he briefed counsel on the content of the letter of 19th March, 2014, and that “counsel advised me that it was his view that there was stateable case for application to his Honourable Court” which resulted in the application for judicial review in July, 2014. Mr. Doherty then says:-

    “I say and I am further advised by Counsel that by far the greater part of delay in applying to this Honourable Court is...

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