Bode v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 341
• Court: High Court
• Date: 14 November 2006

[2006] IEHC 341

THE HIGH COURT

No. 102 J.R./2006

BODE v MIN FOR JUSTICE

JUDICIAL REVIEW

DEBORAH OLARANTIMI BODE (A minor suing by her father and next friend, FOLAJIMI BODE) FOLAJIMI BODE CAROLINE OLA-BODE

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

AND

HUMAN RIGHTS COMMISSION AND ATTORNEY GENERAL

NOTICE PARTIES

REFUGEE ACT 1996

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(1)

CONSTITUTION ART 2

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

IMMIGRATION ACT 2005 S3

IRISH NATIONALITY & CITIZENSHIP ACT 2004

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40.3

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CONSTITUTION ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

D (T) v MIN EDUCATION & ORS 2001 4 IR 259

CONSTITUTION ART 40.3.1

G v BORD UCHTALA 1980 IR 32

G (D) v EASTERN HEALTH BOARD 1997 3 IR 511

BOULTIF v SWITZERLAND 2001 33 EHRR 1179

NIEMIETZ v GERMANY 1993 16 EHRR 97

SISOJEVA v LATVIA 2005 ECHR 405

KUTZNER v GERMANY 2002 35 EHRR 653

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

IMMIGRATION ACT 1999 S3(9)(a)(i)

Abstract:

Immigration - Asylum - Constitutional law - Administrative scheme - Irish born child residency scheme - Application for residency in State on basis that parent of Irish citizen infant - Requirement that applicant prove continuous residence in State since birth of child - Refusal of application for residency on basis that no evidence of continuous residence in State since birth of child - Whether interest of Irish citizen child taken into consideration - Whether interference with constitutional rights of citizen child - Whether breach of right to private life - European Convention on Human Rights, articles. 8 and 14 - European Convention on Human Rights Act 2003, section 3 - Bunreacht na hÉireann, Articles 40.3 and 41.

Administrative scheme - Irish born child scheme - Application for residency in State on basis that parent of Irish citizen infant - Requirement that applicant prove continuous residence in State since birth of child - Fair procedures - Audi alteram partem - Opportunity to make submissions and produce evidence - Whether breach of fair procedures.

Facts: the second and third applicants had applied for residency in the State under an administrative scheme established by the respondent ("the IBC05 scheme") on the basis that they were the parents of the first applicant who was born in the State prior to 2005 and was, accordingly, an Irish citizen. That application was refused on the basis that of a failure to show that they had been continuously resident in the State since the birth of the child. They were granted leave to seek an order of certiorari quashing that refusal on the ground that they were in breach of the personal or fundamental rights, including the welfare, of the child under the Constitution and articles 8 and 14 of the European Convention on Human Rights.

Held by Ms Justice Finlay Geoghegan in granting the applicants the relief sought:

1. that there was nothing in any of the documents relating to the IBC05 scheme which expressly, or by implication stated that they did not apply to a person who was not continuously resident in the State with the child since the date of birth.

2. That, whilst the respondent retained a discretion to determine IBC05 applications, he was under a statutory obligation under section 3 of the Act of 2003 to determine them in a manner compatible with the State's obligations under the European Convention on Human Rights and was bound to act in a manner consistent with State guarantee to defend and vindicate as far as practicable the personal rights of the citizen child including the right to live in the State and to be reared and educated with due regard for his welfare.

3. That the respondent was in breach of the rights of the citizen child under Article 40.3 of the Constitution, having committed himself to consider applications for permission to remain in the State based upon the parentage of a citizen child to then refuse such an application without any consideration of those rights.

4. That a citizen child who had lived in the State since his birth had a private life in the State in the sense of personal and social relationships which resulted from living in the State which demanded respect from the respondent. Accordingly, the respondent's decision to refuse the application without considering the right to private life in the sense of the constitutionally protected personal rights of the child was an interference with its rights to respect for its private life within the meaning of article 8.1 of the European Convention on Human Rights.

5. That, in deciding whether there was good and sufficient reason in the interests of the common good to refuse the application, the respondent should ensure that his decision, in the particular circumstances of the citizen child and parent was not disproportionate to the ends sought to be achieved.

Obiter dictum: That the applicants' entitlements to fair procedures required that they be specifically written to by the respondent seeking documentation evidencing residency in the State and giving them an opportunity of producing it within a specified period of time.

Reporter: P.C.

1 Judgment of Ms. Justice Finlay Geoghegan delivered the 14th day of November, 2006 .

2 This is the principal judgment in a series of judgments given by Ms Justice Finlay Geoghegan on the 14th November 2006 . The judgments given were [2006] IEHC 342/343/344/345/346/347 and 348.

3 The above entitled proceedings were heard with four other similar but not identical applications for judicial review. These were:

4 2005 No. 1271 J.R. Chuka Paul Oguekwe & Ors. v. The Minister for Justice, Equality and Law Reform & Ors.

5 2005 No. 1234 J.R. Samir Moriss Gerges Fares & Anor. v. The Minister for Justice, Equality and Law Reform

6 2005 No. 151 J.R. George Dimbo & Ors. v. The Minister for Justice, Equality and Law Reform

7 2006 No. 222 J.R. Armstrong Edet and Anor. v. The Minister for Justice, Equality and Law Reform

8 Immediately after the above were heard, three other similar applications for judicial review were also heard. These are:

9 2006 No. 43 J.R. Folashade Olubunmi Adio & Ors. v. The Minister for Justice, Equality and Law Reform

10 2006 No. 504 J.R. Mercy Oviawe & Ors. v. The Minister for Justice, Equality and Law Reform & Ors.

11 2005 No. 1348 J.R. Gheorghe Dorin Duman v. The Minister for Justice, Equality and Law Reform & Ors.

12 Each of the proceedings is a separate judicial review proceedings. In each of the proceedings the applicants include an Irish citizen child and a non-national parent or parents who made an application which was refused or not considered under administrative arrangements established by the respondent in 2005 which became known as the IBC/05 Scheme. In certain of the proceedings the other non-national parent of the Irish citizen child was granted leave to remain in the State under the IBC/05 Scheme and is also an applicant.

13 In each of the proceedings the applicants have sought an order of certiorari quashing the relevant decision of the respondent either refusing or refusing to consider an application made under the IBC/05 Scheme.

14 Notwithstanding that there were two groups of hearings, it was agreed in the course of the hearing that in assessing the challenges made the court could take into account in each of the sets of proceedings evidence which had been given in other sets of proceedings. Similarly, whilst a number of the applicants were represented by different counsel and solicitors, in the economy of time those counsel sought to rely upon submissions made by each other and not to repeat unnecessarily submissions already made to the court. It was therefore agreed that subject to the submissions being applicable to a ground in respect of which leave was granted in the relevant proceedings that the court should consider collectively the submissions made by counsel for the differing applicants. The respondent was represented in all the proceedings by the same counsel and solicitor. The same affidavit of Ms. Hynes, a Principle Officer in the Department of Justice, Equality and Law Reform was filed in all the proceedings and identical written submissions of the respondent relied upon. Notwithstanding, each application must ultimately be determined by reference to the facts relevant to the applicants in those proceedings and the reliefs sought and grounds in respect of which leave was granted.

15 The principal relief sought in these proceedings is an order of certiorari of the refusal of the second named applicant, Mr. Bode's application under IBC/05. The reason for his refusal is sufficiently similar to the reason for the refusals in respect of Mr. Oguekwe, Mr. Fares and Mr. and Mrs. Dimbo to warrant considering in this judgment the relevant facts pertaining those refusals. Each of the applicants seeks ancillary and consequential relief and also certain seek relief in relation to other decisions taken by the respondent in respect of them. Those will be considered in the separate judgments.

16 I am also giving today separate judgments in each of the applications for judicial review referred to above. The principles set out in this judgment apply in part at least to certain of the issues which have to be decided in the other judgments. As appears from those judgments they are not repeated. Accordingly, I have taken into account in reaching my conclusions as set out in this judgment, submissions made also on behalf of those...