Ayeni v Minister for Justice

• Jurisdiction: Ireland
• Judge: T.C. SMYTH
• Judgment Date: 18 July 2002
• Neutral Citation: [2002] IEHC 133
• Docket Number: Record No. 883J/2001
• Court: High Court
• Date: 18 July 2002

[2002] IEHC 133

THE HIGH COURT

Record No. 883J/2001

AYENI v. MINISTER FOR JUSTICE

(JUDICIAL REVIEW)

Between/

MR. VALENTINE AYENT

Applicant

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

Citations:

REFUGEE ACT 1996 S12(A)

REFUGEE ACT 1996 S12(B)

REFUGEE ACT 1996 S12(C)

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

IMMIGRATION ACT 1999 S3(6)

DIATTA V LAND BERLIN 1986 2 CMLR 164

EEC REG 1612/68 ART 10

EEC REG 1612/68 ART 11

EEC DIR 90/364

EUROPEAN COMMUNITIES (RIGHT OF RESIDENCE FOR NON-ECONOMICALLY ACTIVE PERSONS) REGS 1993

SI 109/1993

KELLY THE IRISH CONSTITUTION 3ED 66–67

OSHEKU V IRELAND 1986 IR 733

POK SUN SHUN V IRELAND 1986 ILRM 593

FLOOD V GARDA SIOCHANA COMPLAINTS BOARD 1999 4 IR 561

O V MIN FOR JUSTICE UNREP SUPREME 6.6.2002

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFE V BORD PLEANALA 1993 1 IR 39

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992

MAHMOOD, R V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 UKHRR 307

POKU V UNITED KINGDOM 22 EHRR

CABALES & BALKANDALI V UNITED KINGDOM 1985 7 EHRR 471

META & HENNESSY V MIN FOR JUSTICE UNREP SMYTH 8.3.2002

IMMIGRATION ACT 1999 S3(11)

Synopsis:

IMMIGRATION

Asylum

Deportation order - Certiorari - Applicant married to Irish citizen - Whether applicant entitled to remain in State on that basis alone - Whether breach of fair procedures in assessment of applicant's case - Refugee Act, 1996 - Immigration Act, 1999 - EC Council Directive 90/364 (2001/883JR - Smyth J - 18/7/2002)

Ayeni v Minister for Justice, Equality and Law Reform

Facts: the applicant’s claim for asylum was rejected in 2000. Subsequently, he married an Irish citizen in December 2000. The applicant submitted that European law and specifically Council Directive 364 of 1990 provided that where an alien married a national of a member state they were entitled to take up residence and to work within the territory of the spouse or the spouse’s home nation. He also submitted that there was a lack of fair procedures in that the respondent failed to take onto account the representations made under section 3(6) of the Act of 1999. The applicant sought to judicially review the decision to deport him.

Held by Smyth J in refusing the reliefs sought that an asylum seeker who is married to an Irish citizen does not by virtue of that fact alone acquire an automatic or absolute right to remain in this State nor does it render non nationals immune from deportation. He found that Council Directive 364 of 1990 had no application to the applicant’s case. Moreover, he found that the respondents gave detailed consideration to the representations, which did not include the fact of the applicant’s marriage, made on the applicant’s behalf in connection with the section 3(6) application before making the deportation order. The application to remain in the State was a distinct application for leave to remain on humanitarian grounds under section 3(6) of the Act of 1999 and there was no lack of fair procedures in the enquiries made by the respondent.

APPROVED JUDGMENT OF MR. JUSCTICE

T.C. SMYTH

DELIVERED ON THE 18TH DAY OF JULY 2002

1 I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above judgment.

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON THE 18TH DAY OF JULY 2002

2 The Applicant is a Nigerian national who, having sought asylum on arrival in the State on 3rd/4th November 1999, availed of all "the elaborate procedures" under the asylum process. His application was deemed to be manifestly unfounded under Section 12(a), (b) and (c) of the Refugee Act1996, as amended (hereinafter referred to as “the Act of 1996”). His date of birth is 14th February 1978, and he has a fluency of language in Yoruba and English and I am satisfied that the evidence establishes that he did not need a translator or interpreter in dealing with any part of the asylum or immigration system.

3 Having failed in his application at first instance before the Refugee Applications Commissioner and on appeal before the Refugee Appeals Authority, the Applicant as informed by letter dated 16th November 2000 of the Minister's decision to uphold the original decision and refusal to grant a declaration of refugee status. Accordingly, as from that time forward the Applicant, like others likewise circumstanced, in the words of the judgment of the Supreme Court delivered by Hardiman J, inPB& -v- The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 16 at page 42:-

"…lacked any entitlement to remain in the country save that deriving from the procedures they were operating; ie, a right to await a decision on a request not to be deported. Both the fact that they had been refused refugee statues, and the nature of the decision awaited, as appears from the Act, emphasises that this was in the nature of anad misericordiam application. The matters requiring to be considered were the personal circumstances of the Applicant, described under seven sub-headings; his representations (which in practice related to the same matters) and “humanitarian considerations”. The impersonal matters requiring to be considered were described as “the common good and considerations of national security and public policy”. They did not include in any way in obligation to re-visit the original decision ."

4 The Applicant's then solicitor, in November/December of the year 2000, wrote a detailed letter dated 18th December 2000 to the Respondent by way of representations under Section 3(6) of the Immigration Act1999(hereinafter referred to as “the Act of 1999”), which I consider could be fairly said concerned itself primarily with the issue of prohibition of refoulement. Most importantly, this ;letter makes no mention whatsoever of the following:-

5 (i) that the Applicant married an Irish citizen on or about 4th December 2000 — the original marriage certificate was not produced in these proceedings although a copy of it would appear to have been made available to the Respondent (Immigration and Citizenship Division relating to an application for residency status) in mid/late June 2001, and a copy was certainly exhibited in the habeas corpus proceedings in exhibited in the habeas corpus proceedings in December 2001.

6 This is an important matter because the Applicant avers in paragraph (6) of the affidavit grounding the application for judicial review:-

"I say and believe that on the 4th day of December 2000 I married an Irish citizen, Deborah O'Toole, at the Office of the Registrar of Civil Marriage, Dublin. I say and believe that I requested my them legal representatives, Farrell solicitors, to inform the Respondent of this fact, but that I am unaware as to whether they did so."

7 (ii) That three letters from Nigerian sources of apparent repute (two dated 23rd November 2000 and one dated 20th November 2000) were not at any time (more particularly in November/December 2000) made available to the Respondent.

8 These letters are exhibited in the Applicant's grounding affidavit, but there is no sign of their being within the knowledge of the Respondent as appears from their absence from the voluminous correspondence and documentation exhibited by the Respondent in these proceedings. It may or may not have been the case that they were collected by the Applicant when he was in Nigeria in or about the month of December 2000. I make no decision or determination on that issue.

9 Mr. McMorrow conceded they were not available to the Respondent until 31st December 2001.

10 When the Applicant sought asylum on 4th November 1999, he was given a number of documents of which he acknowledged receipt, including (i) change of address forms, and (ii) Information Leaflet and Procedures for Processing Asylum Claims. The guidance information for Applicants for refugee status (exhibited in the Applicant's own affidavit) makes it quite clear that:-

"… it is important that you make known to the Department of Justice, Equality and Law Reform your address and any change of address. You must not leave the State while your application is under consideration. You are not entitled to enter employment."

11 It is clear from the exhibited documentation that the Applicant was issued with a Nigerian passport on 14th December 2000, which bears an official stamp of the airport in Nigeria dated 15th or 25th (it is not possible to be sure from the exhibited document) December 2000, "Seen on Departure". I am satisfied that the copy of the passport was not available to the Respondent until a later date, and, as a matter of probability, was only made available to the Respondent in connection with the application for residency status in or about June 2001.

12 The documentary evidence establishes to my satisfaction that the servants or agents of the Respondent, for whose actions he is responsible, gave detailed consideration to the representations made on the Applicant's behalf and an amount of country of origin information in connection with the Section 3(6) application — no less than five persons, over a period from 24th July 2001 to 28th August 2001, considered the matter and as a result of such regard and consideration the Respondent Minister signed a Deportation order. The Order and a letter of notice of the making thereof, dated 21st September 2001, from the Repatriation Unit Immigration Unit of the Repondent's Department., was sent to the Applicant, to his notified address at 36 Maxwell Street., Dublin 8, but was returned by the postal authorities who were unable to effect delivery — the return made was "not collected for". A copy of the letter was also sent to Farrell solicitors who, so far as the Respondent was aware at the time, were the Applicant's solicitors. The matter of the Deportation Order, its service and the failure of the Applicant to comply therewith ultimately led...