O.A.B.(Nigeria) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 February 2018
• Neutral Citation: [2018] IEHC 142
• Docket Number: [2017 No. 787 J.R.]
• Court: High Court
• Date: 27 February 2018

[2018] IEHC 142

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 787 J.R.]

BETWEEN

O.A.B. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

THE ATTORNEY GENERAL

AND

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

NOTICE PARTIES

Asylum, Immigration and Nationality – S. 3(11) of the Immigration Act, 1999 – Deportation order – Art. 3 of the European Convention on Human Rights – Public interest.

Facts: The applicant sought an order for quashing the decision of the first named respondent/Minister for issuing a deportation order against the applicant. The applicant submitted that the deportation order was unlawful because the applicant's child had the right to care and custody of the father under art. 42A of the Constitution. The applicant contended that the order would be a substantive breach of family rights and against public interest.

Mr. Justice Richard Humphreys dismissed the application. The Court held that the application was out of time. The Court noted that there was no basis to extend the time as the applicant should have challenged the deportation order within 28 days rather than proceed by way of s. 3(11) of the Immigration Act, 1999. The Court further noted that the Minister was not bound to weigh the applicant's rights under art. 3 of the European Convention on Human Rights as the public interest favoured the applicant's deportation. The Court found that the applicant was involved in various violent incidents since his arrival as a minor in the State. The Court held that the applicant was an unsettled migrant and the onus rested upon him to show that the decision of the Minister was unreasonable and the applicant had not discharged that onus. The Court stated that the application had failed in terms of its substance.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of February, 2018

1 The applicant arrived in the State in 2007 as a fourteen year old unaccompanied minor. He then remained in the care of the State under s. 4 of the Child Care Act 1991 for the following four years in a number of different direct provision accommodations. In June, 2008 he applied for asylum. That application was rejected by the Refugee Applications Commissioner, and an appeal was rejected by the Refugee Appeals Tribunal in October, 2008. A proposal to deport the applicant was made on 6th January, 2009 to which the applicant responded with submissions on 27th January, 2009.

2 On 19th June, 2009, the applicant had a daughter at the time when he was aged sixteen years. The daughter now resides with the mother in Tallaght. In October, 2010, when the applicant was seventeen, he was involved in an incident of violent disorder and assault in Temple Bar in Dublin.

3 In December, 2010, the applicant turned eighteen. The applicant moved to different direct provision accommodation in Waterford in early 2011, at which point he says it became more difficult for him to maintain contact with his daughter, although he appears to have done so occasionally thereafter.

4 In March, 2011 he applied for leave to remain on the basis of the Court of Justice judgment in Case C-34/09 Ruiz Zambrano. In mid-2015, aged 24, he left direct provision and became homeless. As a result he appears to have had no contact with his daughter for the following two years.

5 In January, 2014, he pleaded guilty in the Circuit Court to assault causing harm, violent disorder and possession of stolen property in relation to the Temple Bar incident. In April, 2014, he received a two year suspended sentence and 240 hours of community service in relation to those pleas.

6 On 26th June, 2014, the Zambrano application was refused. In May, 2015, an application for subsidiary protection was refused. Thus, from that point onwards his presence in the State was unlawful for all purposes under the Immigration Act 2004. On 21st August, 2015, the Minister issued notice of intention to deport the applicant accordingly.

7 The applicant accumulated further offences between 2015 and 2016 in the District Court. In correspondence relating to the applicant's accommodation situation, the INIS wrote to the applicant's solicitors on the 15th February, 2016, noting that the applicant was involved in ' numerous violent incidents' in direct provision and had not responded to warnings or modified his behaviour in that regard.

8 On 25th August, 2017 a deportation order was made. Rather than challenge that order, the applicant applied on 4th October, 2017 for revocation of the order under s. 3(11) of the Immigration Act 1999. He now belatedly challenges the deportation order, having been granted leave on 19th October, 2017.

9 In the period of four months between September and December, 2017, the applicant made contact with his daughter and appears to have seen her four times in that period, twice since the making of a deportation order against him on the 25th August, 2017. He has also recently sourced accommodation through a church in Naas and is working on a community service placement. He has been charged with failure to produce a passport on 22nd January, 2018, which charge is pending.

10 I had heard helpful submissions from Ms. Rosario Boyle S.C. (with Mr. Alan D.P. Brady B.L.) for the applicant and Ms. Eilis Brennan B.L. for the respondent.

The status of the applicant

11 The applicant never had a positive permission to be in the State other than the automatic and precarious one that arises by operation of law on making a protection claim. He was here for one year as a minor, then for seven years as a protection seeker pursuing applications that failed on all counts. Since then he has been unlawfully present and under the shadow of deportation. At all times he was an unsettled migrant for the purposes of the ECHR case law. Therefore the circumstances in which deportation would breach his art. 8 rights are very exceptional. That point is reinforced by the ECHR jurisprudence that is referenced in numerous parts of the Minister's decision including Ajayi v. the United Kingdom (Application no. 27663/95, European Court of Human Rights, 22nd June, 1999). That is consistent with the decision of the Supreme Court in P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R. 164 where the court upheld a decision to deport an eight year old child who knew no other country but the State, as well as the child's mother, on the basis that the Minister made a valid decision that did not require a proportionality analysis under art. 8. Of particular relevance is the judgment of Charleton J. at paras. 86 and 87 where, referencing Butt v. Norway (Application no. 47017/09, European Court of Human Rights, 4th December, 2012), he states that ' a state party to the ECHR is entitled to control the entry of non-citizens into its territory and their residence there' and accepted that ' immigration policy considerations would be undermined unless children were generally identified with the conduct of their parents'; going on at para. 87 to the effect that ' the often claimed separate rights of children are, save for extraordinary circumstances, dependant on the approach of the parent who claims on their behalf and on their own behalf through that child'. The position therefore is that the applicant has a child in the State, has only had occasional contact with that child recently, which seems to have occurred mainly over the past few months, has never lived with that child, had no contact for a two year period up until relatively recently, and has met the child four times over the four months at the end of 2017, twice since the making of the deportation order. There are clearly no wholly exceptional family circumstances for the purposes of the art. 8 jurisprudence.

Submissions of the applicant

12 A huge number of arguments were launched in this case. These blend into each other, as Ms. Boyle somewhat unsettlingly submitted at the outset of her oral presentation, but insofar as I can disentangle them there seem to be 22 of them. The position adopted seems to be on the basis of throwing as much as you can on the wall and see what will stick, reminiscent of the forensic hoopla referred to by Cooke J. in Lofinmakin (a minor) & Ors v. Minister for Justice & Ors [2011] IEHC 38 (Unreported, High Court, 1st February, 2011). Wilson v. Security Associates Inc. (No. 12 EDA 2016, Superior Court of Pennsylvania, 18th July, 2017) was another case in which 22 arguments were advanced, inspiring Platt J. per curiam at n20 to cite ' the well-known maxim that an appellate brief containing ten or twelve points raises a presumption that none of them have any merit' ( United States v. Hart, 693 F.2d 286 (3d Cir. 1982), per Aldisert J.). One does not even have to go that far in order to take the view that ' Scattershot argument is ineffective' (Scalia J. and Bryan A. Garner, Making Your Case: The Art of Persuading Judges (St. Paul, 2008) p. 220): see per O'Donnell J. in Y.Y. v. Minister for Justice and Equality [2017] IESCDET 38 at para. 10 and Y.Y. v. Minister for Justice and Equality [2017] IESC 61 paras. 28, 59, 79, 82.

13 Few stones were left unturned by the diligence of the applicant's lawyers in a 32 page written submission, or by the very thorough oral submissions. I will now deal with the specific points in order:

(i). It is suggested that the impugned decision fails a proportionality threshold. This was the first of many iterations and reformulations of the proportionality point of the kind of which MacMenamin J. disapproved in Babington v. Minister for Justice and Equality [2012] IESC 65 (Unreported, Supreme Court, 18th December 2012). However it seems clear to me that Meadows v. Minister for Justice [2010] IESC 3 [2010] 2 I.R. 701 is not a licence for a merits-based review. Reliance was placed on A.M.S. v. Minister for Justice [2014] IESC 65 [2015] 1 I.L.R.M. 170, but that...