B.O. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 24 May 2006
• Neutral Citation: [2006] IEHC 162
• Court: High Court
• Docket Number: [2006 No. 423 JR]
• Date: 24 May 2006

[2006] IEHC 162

The high court

[No 423 J.R./2006]

OBENDE v MIN FOR JUSTICE

judicial review

in the matter of the immigration act 1999

between:

blessing obende

Applicant

and

the minister for justice, EQUALITY AND Law reform and the GOVERNOR of dochas centre, mountjoy prison

Respondents

REFUGEE ACT 1996 S9

MARGINE v MIN JUSTICE UNREP FINLAY-GEOGHEGAN 14.7.2004 2004/30/6912

IMMIGRATION ACT 1999 S5(4)

IMMIGRATION ACT 1999 S5(6)

AGBONLAHOR v MIN JUSTICE UNREP HERBERT 3.3.2006

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(c)

IMMIGRATION ACT 1999 S3(11)

G v DPP 1994 1 IR 587

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241 2002/3/501

GONCESCU v MIN FOR JUSTICE EQUALITY AND LAW REFORM 2003 3 IR 442

CAYNE & ANOR v GLOBAL NATURAL RESOURCES 1984 1 AER 225

REFUGEE ACT 1996 S2

IMMIGRATION ACT 1999 S5

CONSTITUTION ART 34

R v SECRETARY OF STATE FOR THE HOME DEPT EX PARTE TURKOGLU 1998 1 QB 398

DOUGOZ v GREECE 2001 34 EHRR 1480

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 5 SCH1

AG v O'CALLAGHAN 1966 IR 501

PETERSDOFF A PRACTICAL TREATISE ON THE LAW OF BAIL IN CIVIL & CRIMINAL PROCEEDINGS 1824

COURTS OF JUSTICE ACT 1924

CONSTITUTION ART 34.3.1

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360 S5

IN THE MATTER OF ART 26 OF THE CONSTITUTION & S5 & S10 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 2000 2 IR 360 S10

OJO v GOV DOCHAS CENTRE UNREP FINLAY-GEOGHEGAN 8.5.2003 2003/43/1043

IMMIGRATION

Deportation

Refusal to revoke deportation order - Bail -Application for leave to seek judicial review of decision - Whether applicant has right to remain in jurisdiction pending application for leave - Standard of proof - Whether leave application and interlocutory injunction should be heard together - Detention for evasion -Whether court can admit detainee to bail -Whether abuse of power to detain where clear that deportation could not be carried out within statutory time period - A(O) v Minister for Justice [2006] IEHC 56, [2006] 1 ILRM 58, G v DPP [1994] 1 IR 374 and Margine v Minister for Justice (Unrep, Finlay Geoghegan J, 14/2/2004) followed - People (AG) v O'Callaghan [1966] IR 501; R v Home Secretary, ex p Turkoglu [1988] 1 QB 398; R v Spilsbury [1898] 2 QB 615; Lane v Esdaile [1891] AC 210; Dougoz v Greece [2001] ECHR 213; Chahal v United Kingdom (1996)23 EHRR 413; Amuur v France (1992) 22 EHRR 533; The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360; East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] IR 317 and R v Durham Prison Governor, ex p Hardial Singh [1984] 1 WLR considered - BFO v Governor of Dochas Centre [2005] 2 IR 1 distinguished -Immigration Act 1999 (No 22), ss 3(11) and 5- Illegal Immigrants (Trafficking) Act (No 29),s 5(1) - Deportation restrained and bail granted pending hearing (2006/423JR - Herbert J -24/5/2006) [2006] IEHC 162, [2006] 3 IR 218 O(B) v Minister for Justice, Equality and Law Reform

a deportation order in respect of the applicant was made by the respondent. The applicant alleged that she subsequently applied, pursuant to section 3(11) of the Immigration Act 1999, to be allowed remain in the State on a temporary basis. The respondent contended that it never received such an application and arrested and detained her for the purposes of effecting her deportation. The applicant sought to judicially review the decision of the respondent to effect the deportation order pending the resolution of that dispute. She also sought an interlocutory injunction releasing her from detention pending the determination of the judicial review proceedings.

Held by Herbert J in ordering the release of the applicant on terms that the applicant had established a serious question to be tried on the application for leave to seek judicial review and that there was a greater risk of doing injustice by refusing to grant the injunctive relief than by granting it. That any deprivation of liberty should be in keeping with the purpose of article 5 of the European Convention on Human Rights so that where a national law authorises deprivation of liberty, it had to be sufficiently accessible and precise, so as to avoid all risk of arbitrariness. Even though section 5 of the Act of 1999 contained a limit of eight weeks to detention, it would still be an abuse of the power to detain if it was clear that deportation could not be carried out within the eight weeks.

Reporter: P.C.

1 judgment of Mr. Justice Herbert delivered the 24th day of May 2006

2 The Applicant is a Nigerian National. Her date of birth is given as 1st August, 1987. On 11th December, 2003, she arrived in this State as an unaccompanied minor seeking refugee status. She claimed a well founded fear of persecution in her country of origin because of her religion, - Christian, - and because of her membership of a particular social group, - young women in danger of being subjected to female genital circumcision. She stated that she feared attack by Muslims who, she claimed, were engaged in conflict with Christians in Benin City in Edo State. She claimed that her father had died before she was born and that her mother was insisting that she be subjected to female genital circumcision.

3 Her application for refugee status was unsuccessful. On 20th September, 2004, she was advised by the Refugee Applications Commissioner that her application was refused. On 31st January, 2005, she was advised by the Refugee Appeals Tribunal that her appeal was unsuccessful. On 15th September, 2005, the first named Respondent made a deportation order in respect of the Applicant and this was notified to her by a letter dated 27th September 2005.

4 At paragraph 3 of her affidavit sworn on 3rd April, 2006, the Applicant avers that at the end of summer 2005 she became re-united with her sister Katie Ezomo, who lives in Limerick and, who with her husband has been granted residency in this State. She states, on affidavit, that she was not aware prior to this that her sister was living in this State.

5 In an affidavit sworn on 21st April, 2006, Katie Ezomo states that she lives at 58 Kilteragh, Dooradoyle, Limerick and, confirms that she and her husband are lawfully resident in this State. She deposes that the Applicant is her natural sister of the full blood and, that she was unaware that the Applicant was in this State and seeking asylum here, until the end of summer 2005. She states that she and her husband are anxious that the Applicant live with them and she states that they will look after and support the Applicant because if returned to Nigeria the Applicant would have no proper family or support.

6 Mr Sean McNamara, an Assistant Principal Officer in the Department of Justice, Equality and Law Reform, swore a replying affidavit on behalf of the Respondents on 21st April, 2006. At paragraphs 13 – 20 inclusive of that affidavit, he avers as follows:-

7 2 "13. A deportation order was made on 15th September, 2005, and notice of its making was given by letter dated 27th September, 2005, to both the Applicant and her legal advisers. No challenge to the deportation order has ever been made.

8 14. At no stage prior to the making of the Deportation Order did the Applicant ever inform the First Named Respondent of the identity, place or residence and immigration status of her sister. The Applicant never made any reference to her sister, Katie, who apparently lives in Limerick. In fact, in her Questionnaire, the Applicant states that she has only one sister, whose given named was Osas, born in 1999 and living in Nigeria.

9 15. The Applicant now seeks to restrain her deportation on three bases; the threat of female genital mutilation, her application for "residency" in Ireland based on her sister's presence in Ireland, and the alleged threat to failed asylum seekers who are returned to Nigeria.

10 16. In relation to the threat of female genital mutilation, this has been considered in the course of the Applicant's asylum application and the Minister prior to the making of the Deportation Order. No challenge to the lawfulness of these decisions has ever been made.

11 17. As regards the application for "residency", the fact that the Applicant never mentioned a sister by the name of Katie until she was served with the deportation order is a matter of grave concern to the First Named Respondent. The Applicant has given every impression to date that she has no sister of this name. The First Named Respondent does not concede that the Applicant has a sister of this name and it should be noted that the Applicant never gave any address in Limerick, notwithstanding the fact that she updated her address as required by s. 9 of the Refugee Act, 1996, as amended.

12 18. In any event, this application will be considered by the First Named Respondent in due course. However, it is not necessary that the Applicant should be in the State while the application is pending. If the application is granted, then the Applicant will not be granted "residency" but is more likely to be granted permission to enter and remain in the State for a limited period, and any renewal of permission would require a fresh application for permission and fresh consideration of the up-to-date circumstances of the Applicant.

13 19. Finally, the Applicant has submitted country of origin information which purportedly shows a threat to human rights of failed asylum seekers who are returned to Nigeria. The Respondents do not concede that there is any such threat, and it should be noted that most of the country of origin information submitted in support of this allegation predates the making of the deportation order. In any event, the First Named Respondent has taken specific steps to ensure that persons deported to Nigeria...