C.I. v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IECA 192
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 55 of 2015]
• Date: 30 July 2015

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

Between

C.I.

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/Respondents

and

The Minister for Justice, Equality and Law Reform, Attorney General and Ireland

Respondents/Appellants

The Human Rights Commission

Notice Party

[2015] IECA 192

The President

Finlay Geoghegan J.

Peart J.

Appeal No: 55/2015

THE COURT OF APPEAL

Immigration and asylum – Refugee status – Deportation orders – Applicants seeking asylum – Whether applicants have engaged Article 8 of the ECHR

Facts: The applicants are citizens of Nigeria. The first applicant is the mother of the second, third and fourth applicants. She made an application for asylum in 2005 (having arrived in the State) and included in her claim the second and third applicants. Her application was rejected both by the Commissioner and the Tribunal and the respondent Minister refused declarations of refugee status. Deportation orders were made against them in 2006. The fourth applicant was born in the State in 2006. Application was made unsuccessfully on her behalf for a declaration of refugee status. An application for leave to remain in the State was unsuccessful and the Minister made a deportation order in respect of the fourth applicant in 2009. In 2014, the High Court granted orders of certiorari quashing the Minister"s decision to make a deportation order in respect of the fourth applicant and affirmed the deportation orders in respect of the first, second and third applicants. The respondents/appellants appealed to the Court of Appeal against that judgment. The Minister submitted that the case law of the ECtHR establishes that the Minister is entitled to operate a lawful system of immigration control and that other than in exceptional circumstances a proposed deportation of persons who have never been lawfully living in the State does not engage the obligations of the State in relation to respect for the right to private life pursuant to Article 8 of the ECHR. The applicants submitted that a proposal to deport an immigrant who has been living in the State, albeit unlawfully, for a number of years and has established a private life in the State consisting of relationships and ties in an educational, work or social context, has the consequence of ending that private life and hence is of sufficient gravity to engage Article 8.

Held by Finlay Geoghegan J that she did not agree with the trial judge that the examination of file demonstrated that it was accepted that the applicants did have a private life in Ireland protected by Article 8. She held that the trial judge fell into error in deciding that the relevant consequence of deportation to be examined (for the purpose of determining whether the interference by deportation would have consequences of such gravity as to engage the operation of Article 8) was the bringing to an end of the private life in the sense of existing social and educational ties in Ireland. She could not agree with the trial judge that the ECtHR in the principles set out in Nnyanzi v UK (2008) 47 EHRR 18 requiring 'sufficiently adverse effects on physical and moral integrity' of the immigrant is to be considered as only having in mind something which is simply more than a technical or inconsequential interference. Finlay Geoghegan J held that the trial judge was in error in condemning the part of the Minister"s decision which related to the State"s respect for the applicants" private life pursuant to Article 8. She noted that the mother and first two children arrived in Ireland and immediately claimed asylum; they were not then unlawfully present in Ireland by reason of s. 9 of the Refugee Act 1996 for so long as their asylum claim was pending. In relation to the fourth applicant, Finlay Geoghegan J held that whilst born in Ireland, she is not an Irish citizen and does not have a right to live in or be brought up in Ireland. Finlay Geoghegan J held that all of the social, educational and other ties established in the State were at a time when the mother knew their continued existence in Ireland was precarious and objectively the continued existence of the children in Ireland was also precarious. She held that there was no evidence put before the Minister by the facts presented and referred to in the examination of file to indicate that the bringing to an end of the particular private life they had created in Ireland would have any significant impact on the right of the applicants, mother or children, to personal development including to education or their right to establish and develop relationships with other human beings on their return to Nigeria.

Finlay Geoghegan J held that she would allow the appeal, vacate the orders of certiorari granted by the High Court and hear the parties as to any further orders in respect of the applicants" claims before the High Court.

Appeal allowed.

1 Judgment of the Court delivered by Ms. Justice Finlay Geoghegan on the 30th day of July 2015

2 1. The Appellants appeal against the judgment of the High Court (MacEochaidh J.) of the 31 ^st July, 2014 and order of the 6 ^th November, 2014, pursuant thereto granting orders of certiorari quashing the Minister's decision to make a deportation order in respect of the fourth named applicant and affirming deportation orders in respect of the first, second and third named applicants for the reasons as set out in the judgment.

3 2. By order of the 16 ^th December, 2014, the High Court granted leave pursuant to s. 5(3) of the Illegal Immigrants (Trafficking) Act, 2000, certifying that the decision made on the 31 ^st July, 2014, involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken. Whilst the order of the High Court identifies the point of law, the appeal to this Court is against the entire of the decision and the point so identified informs the issues to be considered on the appeal.

Background Facts

4 3. The applicants are citizens of Nigeria. The first named applicant is the mother of the second, third and fourth named applicants. She first made an application for asylum on the 17 ^th February, 2005, (having arrived in the State) and included in her claim the second and third named applicants who were born in 2002 and 2004 respectively. Her application for asylum was rejected both by the Commissioner and the Tribunal and on the 28 ^th September, 2005, the Minister refused them declarations of refugee status. Deportation orders were subsequently made against them on the 4 ^th May, 2006 and notified by letter dated the 19 ^th May, 2006.

5 4. There were earlier High Court proceedings challenging the decision to make deportation orders which were abandoned. The first, second and third named applicants then requested revocation of the deportation orders on a number of occasions between May 2006 and March 2009. Those requests were unsuccessful and the deportation orders were affirmed on the 2 ^nd September, 2009.

6 5. In the meantime the fourth named applicant was born in the State on the 25 ^th January, 2006. Application was made unsuccessfully on her behalf for a declaration of refugee status. An application for leave to remain in the State was then made pursuant to s. 3 of the Immigration Act 1999. That was unsuccessful and the Minister made a deportation order in respect of the fourth named applicant on the 2 ^nd September, 2009. Motions seeking leave to issue judicial review proceedings to challenge the two decisions of the 2 ^nd September, 2014, were issued on the 26 ^th September, 2009 and a 'telescoped' application was heard by the High Court in conjunction with another similar application in respect of which there is no appeal.

7 6. The focus of the High Court judgment which is under appeal was the consideration given in the examination of the file leading to the Minister's decision in relation to right to respect for private life pursuant to Article 8(1) of the European Convention on Human Rights (ECHR).

8 7. In respect of the mother and two elder children, this was in the following terms at para. 7:-

" Consideration under Article 8 of the European Convention of Human Rights (ECHR)"

9 If the Minister affirms the deportation orders made in respect of [CI] and her children, [TI] and [TTI], this decision may engage their rights to respect for private and family life under Article 8(1) of the ECHR.

10 Private life

11 It is accepted that a decision by the Minister to affirm the deportation orders made in respect of [CI] and her children [TI] and [TTI] may constitute an interference with their right to respect for their private life within the meaning of Article 8(1) of the ECHR. This relates to their work, educational and other social ties that they have formed in the State as well as any matters relating to their personal development since their arrival in the State. [CI] submitted that she has worked as a volunteer for the Irish Wheelchair Association and for the Volunteer Centre and has also done work experience in St. Joseph's Hospital in Ardee. She also submitted that she has completed education and safety courses with a view to making a valuable contribution to Ireland. Furthermore, [CI] submitted that she is a member of a church in the State and has integrated well into Irish society. It is submitted that [TI] and [TTI] are both attending school in the State and are making good progress.

12 However, it is not accepted that such interference will have consequences of such gravity as potentially to engage the operation of Article 8. As a result, the decision to affirm the deportation orders made in respect of [CI]and her children [TI] and...