Azeem v The Minister for Justice and Equality No.2; v.D. (Zimbabwe) v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 26 February 2018
• Neutral Citation: [2018] IEHC 104
• Date: 26 February 2018
• Court: High Court
• Docket Number: [2017 No. 509 J.R.] [2016 No. 480 J.R.]

[2018] IEHC 104

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 509 J.R.]

[2016 No. 480 J.R.]

BETWEEN

RAFIO ABDUL AZEEM

AND

KHAIR DIN AZEEM

AND

KHADIJA AZEEM (AN INFANT SUING BY AND THROUGH HER MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)

AND

NARWAL AZEEM (AN INFANT SUING BY AND THROUGH HER MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)

AND

MUHAMMAS UMAR (AN INFANT SUING BY AND THROUGH HIS MOTHER AND NEXT FRIEND RAFIA ABDUL AZEEM)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

V. D. (ZIMBABWE)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum, Immigration & Nationality – Art. 8 of the European Convention on Human Rights Act 2003 – Leave to appeal – Point of law of exceptional public importance

Facts: In the present two sets of proceedings, both the applicants sought leave to appeal to the Court of Appeal. In the first set of proceedings, the Court set aside the deportation order and thus, the State had sought leave to appeal. In the second set of proceedings, the deportation order was upheld and thus, the applicant sought leave. Both the State applicant and the named applicant formulated questions in relation to the law laid down under art. 8 of the European Convention on Human Rights Act 2003.

Mr. Justice Richard Humphreys refused to grant leave to appeal in both sets of proceedings. The Court noted that the questions formulated by the applicants did not warrant the grant of leave as none of the questions were of exceptional public importance. The Court observed that the engagement of rights of the applicant under art. 8(2) of the ECHR in relation to medical treatment had been adequately answered in vast variety of judgments. The Court opined that for unsettled migrants, the deportation would breach art.8 only in exceptional circumstances and there was no onus on the State to assess the disparity between Irish and foreign medical care, save in exceptional circumstances.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of February, 2018

1 In Azeem v. Minister for Justice and Equality (No. 1) [2017] IEHC 719 (Unreported, High Court, 10th November, 2017) I set aside a deportation order by reference to art. 8 of the ECHR (as applied by the European Convention on Human Rights Act 2003) having regard to a combination of certain matters, particularly:

(i). a confusion between arts. 3 and 8 of the ECHR in the decision;

(ii). a failure to correctly appreciate the ramifications of art. 8 that could include health issues that did not meet the art. 3 threshold;

(iii). the fact that a discussion included a purported summary of case law which did not seem to be totally accurate, which the State could not stand over, and in relation to the provenance of which the State could not account; and

(iv). the specific way in which the exceptionally severe medical difficulties in that case were dealt with.

2 In V.D. v Minister for Justice and Equality (No. 1) [2018] IEHC 56, I held that the medical difficulties in that case were not such as to require a proportionality analysis under art. 8(2), and therefore upheld the deportation order.

3 Both the State in Azeem and the applicant in V.D. now apply for leave to appeal. I have received helpful submissions from Mr. David Conlan Smyth S.C. (with Ms. Kilda Mooney B.L.) for the respondent and from Mr. Conor Power S.C. (with Mr. Ian Whelan B.L.) for the applicant in Azeem, and from Mr. Michael Conlon S.C. (with Mr. Ian Whelan B.L.) for the applicant and Ms. Denise Brett S.C. (with Mr. Tim O'Connor B.L.) for the respondent in V.D. I have considered the law in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, as well as S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 para. 2, and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 at para. 72.

4 It seems to me that the substantive law in relation to art. 8 is fairly clear, drawing from the various authorities cited in both of the substantive judgments and relied on by the parties in the present applications, which I can attempt to summarise as follows;

(i). For unsettled migrants, deportation will breach art. 8 only in very exceptional circumstances (see Stanley, Immigration and Citizenship Law (Dublin, 2017) p. 398).

(ii). This principle includes where the deportation impacts on physical health, even if there is no breach of art. 3, as well as impact on other aspects of private life and family life. That is clear from the judgment of Finlay...