E.B. (A Minor) v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date27 July 2016
Neutral Citation[2016] IEHC 531
Docket Number[2013 No. 154 J.R.]
Date27 July 2016

[2016] IEHC 531

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2013 No. 154 J.R.]

BETWEEN
E.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, A.B.),
J.B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, A.B.),
W.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, A.B.),
A.B. AND F.B.K.
APPLICANTS
AND
MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Asylum, Immigration & Nationality – Refusal to revoke Deportation order – Best interest of children – Criminal record of the asylum seeker – Public interest

Facts: The applicants by way of an application for judicial review sought an order of certiorari to revoke the order of deportation the made by the respondent against the fifth named applicant. The applicants contended that the refusal of revocation of deportation of the fifth named applicant by the respondent was contrary to his constitutional rights, EU and ECHR rights. The applicants further contended that the respondent failed to consider the best interest of the minor applicants being the children of the fifth and fourth applicants.

Ms. Justice Faherty refused to grant the relief sought by the applicants. The Court found that the respondent considered the best interest of the applicants. The Court held that the respondent was entitled to take into account the criminal record of the fifth named applicant for the common good and prevention of crime and offences in the state. The Court held that the respondent had a duty to give weight to the public interest and security rather than the choice of residence of the foreign married couple. The Court found that the respondent assessed the evidence with regard to the contact between the fifth named applicant in the lives of the minor applicants but failed to find any substantial involvement in their lives as the family had already been fractured.

JUDGMENT of Ms. Justice Faherty delivered on the 27th day of July, 2016
1

This is a post leave application for judicial review seeking an order of certiorari quashing the decision of the respondent dated 31st January, 2013 to refuse to revoke the deportation order which is in force against the fifth named applicant. Leave to apply for judicial review having been refused by the High Court, was, on appeal, granted in respect of the decision by order of the Supreme Court dated 29th July, 2014.

Background
2

The first, second and third named applicants (hereinafter referred to as the minor applicants) are citizens of this state and were born on 16th April, 2001, 2nd December, 2006 and 3rd April, 2008 respectively. The fourth named applicant is the mother of the minor applicants and the wife of the fifth named applicant who is the minor applicant's father.

3

The fifth named applicant came to Ireland on 19th May, 1998 from the Democratic Republic of Congo and applied for asylum. The fourth named applicant arrived in Ireland in 1999 and also applied for asylum. Both applicants were refused refugee status. Following the birth of the first named applicant in 2001, the fourth and fifth named applicants were granted permission to reside in this state on 19th June, 2002, based on the first named applicant's rights as an Irish citizen.

4

According to the grounding affidavit sworn by the fourth named applicant on 28th February, 2013, she and the fifth named applicant, together with the minor applicants, lived in the state as a family unit during the 2000's. During this period the fifth named applicant received a number of criminal convictions. Between December 2002 and December 2005, such convictions comprised road traffic offences. Between July 2008 and November 2008 the fifth named applicant was convicted of a number of offences, largely under the Theft Act 2001, in addition to further road traffic convictions. The upshot of the 2008 convictions was that the fifth named applicant received a number of custodial sentences which resulted in his imprisonment for some 13 ½ months. In all, 34 convictions were recorded against the applicant between 2002 and 2008.

5

The convictions led to a decision by the respondent to revoke the fifth named applicant's permission to remain in the state in light of the fifth named applicant not having complied with the conditions under which he was granted permission to remain in the state, namely ' conditional on [the fifth named applicant] remaining in compliance with Irish Law in every respect during that time'. The fifth named applicant was so informed by letter dated 27th July, 2009. By reason of the foregoing, and given that the fifth named applicant's permission to remain in the state had expired in January 2009, the respondent proposed to make a deportation order pursuant to s. 3 of the Immigration Act, 1999 as amended. On 23rd September, 2009 and 25th September, 2009 respectively, the fifth named applicant made application for leave to remain and subsidiary protection both of which applications were refused on 18th November, 2009. A deportation order, signed on 18th November, 2009, issued on 23rd April, 2010. The fifth named applicant was ultimately removed from the state on 16th February, 2011. According to the fourth named applicant's grounding affidavit, following his deportation to the DRC, the fifth named applicant ' was detained and abused by the authorities when deported to Kinshasa' for a period of time following which he moved to Kenya.

6

On 18th April 2011, the applicants' solicitor applied to have the deportation order revoked and placed reliance on recent judgment of the European Court of Justice in Zambrano v. Office National de L'emploi, a decision rendered on 8th March, 2011. On 28th February, 2012, the respondent department wrote to the applicants' solicitor advising that the application to revoke the deportation order had been considered and refused. One of the findings, inter alia, in the examination of file document which accompanied the refusal letter was that ' it cannot be accepted that [the fifth named applicant] is playing an active parental role in his children's lives. Consequently, it cannot be accepted that the applicant's Irish citizen children are dependent on him, as is stipulated in the Zambrano judgment.' The application for a visa was refused on 29th February, 2012.

7

By letter dated 25th June, 2012, the applicants' solicitor again wrote to the Department and applied for revocation of the deportation order and this application included, inter alia, country of origin information on the DRC and submissions in respect of the fifth named applicant's role as a father, together with a letter from the first named applicant to the respondent which explained how much she missed her father and her personal plea that he be allowed to return. The submissions stated, inter alia:-

'With respect to the Applicant's parental role in his children's lives, please note our submissions in accordance with our instructions as follows.

Apart from the period of approximately 12 months spent in custody, the Applicant lived with his children in Ireland from their birth until he was deported in February 2011. When in prison in Ireland the Applicant had almost daily telephone contact with his children. The children also visited the Applicant in prison on a number of occasions. Since being deported, the Applicant has been in daily telephone contact with his children. The Applicant has played a central role in his children's upbringing and continues to be a central part of their lives. Their (sic) is clearly an ongoing dependency by the children on their father. With respect to our client's active parental role we refer to the enclosed letters as set out below.

Moreover, many of the limitations on the Applicant's parental role are caused by the Minister's refusal to permit the Applicant to reside in Ireland. It is submitted that the Minister cannot reasonably rely on the sundering of the family unit occasioned by the Minister's deportation of the Applicant and refusal to revoke the deportation order as a basis for continuing to refuse to permit the Applicant to enter and reside in the State.

It is submitted that the Applicant's children clearly have an ongoing need for the company and care of their father. Notwithstanding the almost daily contact the Applicant has had with his children since deportation, it is submitted that there is an abiding need for the children to have their father with them in Ireland. The children depend on the company and care of their father for the full enjoyment of their private and family life rights as well as their rights as children.'

8

It was submitted that the fifth named applicant could not reasonably be said to represent a 'genuine, present or sufficiently serious threat to....society' as to warrant depriving his wife and children of his care and company in the State. It was asserted that he had paid his debt to society by serving his prison sentence. A medical report was also furnished.

9

Representations were also made by the fourth named applicant and the fifth named applicant's sister who is resident in Ireland. Two of the fifth named applicant's sisters together with his mother are resident in Ireland, his mother and one sister having obtained refugee status. Additionally, his mother has citizenship of Ireland.

Further submissions were made on 17th and 21 September, 2012 and 3rd October, 2012. On 19th October 2012, additional submissions were made to the respondent on the absence of the fifth named applicant from the minor applicants' lives, including reference to Article 24 of the EU Charter on Fundamental Rights and the provision of extracts from a US study on ' The Importance of Fathers in the Healthy Development of Children'. A further letter addressed to the respondent from the first named applicant was also included in these submissions.

On 27th November, 2012, on foot of the representations that were made on 25th June 2012, the respondent sought details of the...

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  • J.W. v The Minister for Justice and Equality
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