C. I. T. T-I. and Others v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 31 July 2014
• Neutral Citation: [2014] IEHC 447
• Court: High Court
• Date: 31 July 2014

I (C) & Ors (minors) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

C. I.

T. T-I. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.I.)

T. T-I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND C.I.)

T. T-I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND C.I.)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

-AND-

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

AND

M. A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2014] IEHC 447

[No. 988 JR/2009]

[No. 1457 J.R./2010]

THE HIGH COURT

Immigration and Asylum – Article 8 of the European Convention on Human Rights – Deportation – Proportionality

Facts: The court provided judgement in two cases concerning how the Minister assessed rights pursuant to Article 8 of the European Convention on Human Rights. The first case involved an application for judicial review of two decisions of the Minister. The applicant sought certiorari of the decision refusing him subsidiary protection and to quash a deportation order against him. The applicant was a single man with no children. The second case concerned an application for judicial review of three decisions of the Minster. The first, second and third applicants sought certiorari of a decision affirming deportation orders. The fourth named applicant in the second case sought to quash the decision refusing her application for subsidiary protection and to quash a deportation order. The first named applicant in the second case was the Mother of the second and third named minor applicants. The fourth applicant was also her daughter.

Held by Mac Eochaidh J: After reviewing the second case the court agreed that no attempt had been made by the Minister to identify the consequences of the interference in the applicant”s private life if they were removed. The obvious consequence of removal is that the identified private life of the applicants would cease thus engaging Article 8. However, the court also stated that the mere engagement of Article 8 rights did not mean that a State”s proposed action would breach that right. In addition, State decisions are protected by the rule of necessity and the principles of proportionality by way of Article 8(2); no matter how negative the consequences are for its addressee. In relation to the second case, Mac Eochaidh J upheld the Minister”s decision with respect to consideration of the applicant”s family rights under Article 8 of the Convention, but condemned the part of his decision in relation to their private life rights.

In relation to the first case, the Minister accepted that removal would constitute an interference with private life but failed to expand on the consequences to the applicant. The Minister denied that the interference would have consequences of such gravity to engage the operation of Article 8. The court disagreed with the Minister on this point. It found that the removal of a person from the life and educational experience in a State was enough to engage private life rights under Article 8. However, even though Article 8 rights were engaged, because the consequences were more than technical, this did not mean the State had breached Convention rights. Furthermore, an interference of this type can be excused by reference to the doctrine of necessity in Article 8(2), and the principle of proportionality. Mac Eochaidh J held that the Minister”s decision that there was no interference with the right to respect for family life in this instance was correct because the applicant was a single man with no children. However, he condemned the Minister”s decision in relation to the effect on the applicant”s private life.

The court agreed that interference with private life and family life is necessary in a democratic society and therefore went on to examine the issue of proportionality. The court said it was lawful for a State to regulate the presence of non-nationals on its territory and that immigration control did not automatically breach Convention rights. Something other than the termination of the applicants private life in the deporting state was required if the proportionality analysis were to yield a positive result for the applicant. A similar sort of approach was appropriate in relation to family life. However, because persons other than the deportee may be affected due to the potential relocation of family life in another State, this may be a consideration to weigh in the balance when conducting a proportionality analysis. The proportionality issue was to be dealt with separately as the courts judgment dealt with the ECHR Article 8 issues only.

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA CHAP III S25(1)(C)

R (RAZGAR) v SECRETARY OF STATE FOR THE HOME DEPT (NO 2) 2004 2 AC 368 2004 3 WLR 58 2004 3 AER 821

DOS SANTOS & ORS v MIN FOR JUSTICE & ORS UNREP MAC EOCHAIDH 30.5.2013 2013/13/3883 2013 IEHC 237

S (AM) v MIN FOR JUSTICE UNREP MAC EOCHAIDH 13.2.2014 2014 IEHC 57

W (V) [UGANDA] v SECRETARY OF STATE FOR THE HOME DEPT 2009 INLR 295 2009 EWCA CIV 5

BENSAID v UNITED KINGDOM 2001 33 EHRR 10 11 BHRC 297 2001 INLR 325 2001 ECHR 82

NNYANZI v UNITED KINGDOM 2008 47 EHRR 18 2008 AER (D) 108 (APR) 2008 ECHR 282

N v UNITED KINGDOM 2008 47 EHRR 39 25 BHRC 258 2008 INLR 335 2008 AER (D) 05 (JUN) 2008 ECHR 453

SMITH v MIN FOR JUSTICE & ORS UNREP SUPREME 1.2.2013 2013/47/13538 2013 IESC 4

COSTELLO-ROBERTS v UNITED KINGDOM 1995 19 EHRR 112 1994 1 FCR 65 1994 ELR 1 1993 ECHR 16

DOLENEC v CROATIA UNREP ECHR 26.11.2009 (APPLICATION NO 25282/06)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) 2011 2 IR 1 2005/35/7364 2005 IEHC 380

G (A) [ERITREA] v SECRETARY OF STATE FOR THE HOME DEPT 2008 2 AER 28 2007 INLR 407 2007 AER (D) 490 (JUL) 2007 EWCA CIV 801

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

HUANG v SECRETARY OF STATE FOR THE HOME DEPT 2007 2 AC 167 2007 2 WLR 581 2007 4 AER 15 2007 UKHL 11

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 31st day of July 2014

2 1. This is a single judgement in two cases which made comaplaint about the manner in which rights pursuant to Article 8 of the European Convention on Human Rights were assessed by the Minister. The court, with the consent of the parties, decided to examine the Article 8 ECHR point in both proceedings together and supplemental submissions were produced by counsel. This judgment addesses this issue only.

Procedural Background:

3 2. The case of M.A. is a 'telescoped' application for judicial review of two decisions of the Minister. The applicant seeks certiorari of a decision refusing him subsidiary protection dated 8 ^th October 2010 and he also seeks to have a subsequent deportation order made against him dated 20 ^th October 2010 quashed.

4 3. The C.I. case is also a 'telescoped' application for judicial review of three decisions of the Minister. The first, second an d third applicants seek certiorari of a decision to affirm deportation orders. The fourth named applicant seeks to quash a decision refusing her application for subsidiary protection and to quash a deportation order.

The C.I. case:

5 4. In C.I., the first named applicant is the parent of the second and third named minor applicants whose applications throughout were dealt with under the umbrella of their mother's application. The fourth named applicant is also a daughter of the first named applicant and was born in the State following the initiation of her mother's claim and this is why the fourth named applicant's claims were dealt with independently. In any event, having had their asylum claims fully assessed deportation orders were issued against the first, second and third named applicants individually on 4th May 2006. Following the making of the deportation orders a series of further representations were made on behalf of the first named applicant seeking re-consideration of the refusal of her application for temporary leave to remain in the State. The Minister completed an 'Examination of file' taking into account these further representations but his earlier decision was confirmed on 1 ^st September 2009 (notified on 14 ^th September 2009) and he affirmed the making of deportation orders. It is that decision which the first, second and third named applicants impugn in these proceedings.

6 5. Following her refusal of refugee status, the fourth named applicant made an application for subsidiary protection which was refused on 28 ^th August 2009. A deportation order was duly made against her dated 2 ^nd September 2009 with an attached 'Examination of file' and was notified to her by letter of 14 ^th September 2009. The fourth named applicant seeks certiorari of both of these decisions in these proceedings.

7 6. In C.I. the Art. 8 ECHR assessment in respect of the first, second and third named applicants' reconsideration of their application for temporary leave to remain is contained in their 'Examination of file under section 3 of the Immigration Act 1999' and is in the following terms:

"If the Minister affirms the deportation orders made in respect of C. I. and her children T.T.I and T.T.I., this decision may engage their rights to respect for private and family life under Article 8(1) of the ECHR."

8 Private Life:

9 It is accepted that a decision by the Minister to affirm the deportation orders made in respect of Ms. T.I. and her children T.T.I. and T.B.I may constitute an interference with their right to respect for the private life within the meaning of Article 8(1) ECHR. This relates to their work, educational and...