B (J)(A Minor) and Others v Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 July 2010
• Neutral Citation: [2010] IEHC 296
• Docket Number: [No. 569 J.R./2010]
• Court: High Court
• Date: 14 July 2010

[2010] IEHC 296

THE HIGH COURT

[No. 569 J.R./2010]

B (J)(A Minor) & Ors v Min for Justice

JUDICIAL REVIEW

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

J.B. (A MINOR), D.Q.B. & A. B.

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 1999 S3(6)

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

CONSTITUTION ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

BELDJOUDI v FRANCE ECHR 26.02.1992 APPLICATION NO 12083/86

BOULTIF v SWITZERLAND 2.08.2001 APPLICATION NO 54273/00

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

LISBON TREATY ART 263

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

IMMIGRATION LAW

Deportation

Injunction - Interlocutory injunction - Application to restrain deportation -- Residence - Family rights - Irish born child - Whether lawful to remove mother of dependent Irish born child pursuant to deportation order - Whether deportation of applicant would breach right of family members - Conduct of applicant - Whether arguable case for grant of leave to seek judicial review- Whether substantial grounds established - Whether applicant entitled to remain in State pending determination of proceedings - Whether breach of Convention rights - Independent review mechanism - Whether applicant entitled to a full and independent assessment to be made of all facts and circumstances of the case - Whether fair issue to be tried - Whether damages adequate - Balance of convenience - Oguekwe v Minister for Justice [2008] IESC 25 [2008] 3 IR 795 followed; AO & DL v Minister for Justice [2001] 1 IR 1 considered - Immigration Act 1999 (No 22), s 3 - Leave to seek judicial review & interlocutory injunction granted (2010/569JR - Cooke J - 14/7/2010) [2010] IEHC 296

B(J) v Minister for Justice, Equality and Law Reform

Mr. Justice Cooke

1 There are two applications before the Court in this proceeding: an application for an interlocutory injunction to restrain the deportation of the third named applicant on foot of an order made under s. 3 of the Immigration Act1999 dated 1^st April, 2010 and an application for leave to seek judicial review of that order with a view to its being quashed.

2 As compared with other applications to injunct deportation which come before this Court in analogous circumstances of Nigerian parents with an Irish-born citizen child, this case is unusual in that the parent to be deported is the mother and the child, while born in the State, was conceived in Nigeria when her father, the second named applicant was visiting the third named applicant there in early 2009. The father had been granted residence in the State in 2005 on the basis that he was living here with his brother who had in turn been granted residence as the father of an Irish born child.

3 The child was born here on 10^th November, 2009, his mother having come here, she says, to find her boyfriend and make him face up to his responsibilities, her father in Nigeria having disowned her. She nevertheless applied for asylum, a claim which was understandably rejected. This led to the refusal of a declaration of refugee status and then to the making of the deportation order of 1^st April, 2010. In advance of the making of that order representations had been made to the Minister on behalf of the third named applicant by a letter of her solicitor dated 28^th September, 2009.

4 The deportation order is, as usual, supported by the Minister's memorandum of examination of file compiled within the department setting out the analysis of the statutory considerations under s. 3 (6) of the Act of 1999, the statutory prohibitions against deportation and the representations made to the Minister as well as the appraisal of the rights of the applicants both under the Constitution and the European Convention of Human Rights.

5 The case to be made as to the illegality of the contested order if leave is granted is essentially directed at the adequacy of the appraisal made in balancing the interests of the State in implementing the deportation against the countervailing interests of the applicants as a family. Reliance was placed in particular upon the invocation by Fennelly J. in his judgment inA.O. and D.L. v. Minister for Justice [2003] 1 IR 1, of the entitlement and birthright of every person born on the island of Ireland to be part of the Irish nation as declared in Article 2 of the Constitution. This, it is argued, illustrates the fundamental right of any Irish citizen child to grow up and to be educated in the State in order to be able to take full advantage of the benefits of being an Irish citizen. In the circumstances of this family where the child is not yet a year old and the father alone is entitled to work (although he has in fact been unemployed since January, 2010,) it is submitted that it is disproportionate to deport the child's mother given that less restrictive measures would be available to secure the two substantial reasons associated with the common good which are identified in and relied upon at the conclusion to the file note namely "to safeguard the economic wellbeing of the country" and "to maintain control of its own borders and operate a regulated system for the control, processing and monitoring of non-nationals in the State".

6 The Court has decided to grant leave in this case but only upon two grounds which are more limited and more closely focussed than those canvassed in the Statement of Grounds. Several of the grounds and arguments raised do not, in the Court's view, justify the grant of leave. In a case where the file note clearly demonstrates that the Minister's analysis has carefully and thoroughly extended over all the required considerations mentioned above it is not a valid ground for judicial review simply to allege that the contested order breaches the Constitution or violates Convention rights; or fails to weigh relevant factors adequately or that it is unreasonable orultra vires. It is not enough simply to disagree with the Minister's appraisal as disproportionate or unbalanced: it is necessary to particularise some specific omission of a relevant consideration; some mistake of fact or error of law; some irrelevance or other flaw which is so material to the tenability of the conclusion as to render the decision unlawful by...