C.M. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 April 2018
• Neutral Citation: [2018] IEHC 217
• Docket Number: [2017 No. 873 J.R.]
• Court: High Court
• Date: 25 April 2018

[2018] IEHC 217

THE HIGH COURT

JUDUCIAL REVIEW

Humphreys J.

[2017 No. 873 J.R.]

BETWEEN

C.M., O.V.M.,

AND

C.G.M. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.M.) (NIGERIA)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Refusal of asylum claim – Issuance of deportation orders – Revocation of deportation orders – Delay in challenging deportation orders

Facts: The applicants filed the present judicial review application for the refusal of the respondent to revoke the original deportation orders made against them. The respondent stated that there were no exceptional circumstances and new information that would make the respondent to revoke the deportation orders.

Mr. Justice Richard Humphreys dismissed the proceedings. The Court held that there was no infirmity in the respondent's decision. The Court found that the applicants were at fault as they had failed to report to the gardai for an eight-year period and thus, frustrated the immigration system. The Court noted that its discretion to overturn a decision under s. 3(11) of the Immigration Act 1999 was limited.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of April, 2018

1 The applicants arrived in the State from Nigeria and applied for asylum on 14th February, 2007. That application was rejected by the Refugee Applications Commissioner. The rejection was affirmed on appeal by the Refugee Appeals Tribunal. The Minister formally refused the applicants' refugee status on 30th September, 2008. A subsidiary protection application was then made and also refused. Deportation orders were made against the applicants in April, 2009.

2 The first named applicant was notified by letter dated 8th May, 2009 to her address on record and to her legal representatives on record, Conor Ó Briain Solicitors. She was required to present on 25th May, 2009 at 2 pm. Not only did she fail to so present but shortly afterwards on 5th June, 2009, the applicants left their accommodation centre with no forwarding address provided. They were quite properly classed as evaders. Very unhelpfully, the applicants' solicitor argumentatively disputed in correspondence that the applicants were evaders. An evader is someone who fails to present or register when required to do so. On that definition it is obvious that the mother evaded for a very lengthy period. The children were minors so their position was derivative, but they must be held also to be evaders although they are not personally at fault prior to their minority. This is not simply a question of not presenting at the appropriate time. The applicants actively obstructed enforcement of the deportation orders by leaving their accommodation without a forwarding address.

3 The second and third named applicants were seven and three when brought to the State and according to the applicants have assimilated here. On 4th March, 2013 the applicants' new solicitors Trayers & Co sought revocation of the deportation orders under s. 3(11) of the Immigration Act 1999. The Minister replied to the effect that the request would be considered when it had been confirmed that the applicants had presented or had alternatively left the State. This was not so confirmed. On 22nd July, 2015, a second s. 3(11) application was made by the applicants' present solicitors, John Gerard Cullen Solicitors. On 19th October, 2015 an application for readmission to the protection process under s. 17(7) of the Refugee Act 1996 was also made. On 23rd March, 2016 the applicants were notified that the s. 17(7) application had been refused.

4 Subsequently, further submissions were made regarding the s. 3(11) application. Reliance was placed on the second named applicant now being a student in the University of Limerick, and also on an alleged suicide risk in the case of that applicant. On 18th January, 2017 the current address of the applicants was furnished for the first time since the applicants left their accommodation in 2009. It is also suggested that in December, 2016 the first named applicant had interacted with Gardaí, although this was not a formal presentation pursuant to a notice in that regard under the Immigration Act 1999.

5 On 31st January, 2017 the applicants' solicitors wrote to the Minister argumentatively asserting that ‘ our clients had never been asked to present to the GNIB’. It is now accepted by counsel that this is not correct. On 13th April, 2017 the applicants first formally reported, after an almost eight-year evasion. On 11th June, 2017 the second named applicant turned eighteen years of age. On 20th October, 2017 the s. 3(11) application was refused. On 21st November, 2017 the statement of grounds in the present application was filed. Leave was duly granted. I have heard helpful submissions from Mr. Diarmuid Rossa Phelan S.C. (with Mr. Patrick Killian McMorrow B.L.) for the applicants and from Ms. Eilis Brennan B.L. for the respondent.

Judicial review of a s. 3(11) decision is of a limited nature.

6 It has been made clear on a number of occasions that the extent to which a court will overturn a s. 3(11) decision is very limited and indeed much more so than in the case of a deportation order: see Kouaype v. The Minister for Justice Equality and Law Reform & Anor. [2005] IEHC 380 [2011] 2 I.R. 1per Clarke J, P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R. 164 at para. 16per MacMenamin J. and per Charleton J. at para. 30, M.A. v. Minister for Justice, Equality and Law Reform (Unreported, Cooke J., 17th December, 2009). Such an approach precludes relief here absent very special circumstances such as a clear illegality or a matter that could not have been advanced at the time of the original deportation order. I can turn then to the specific grounds as pleaded.

Ground 5A – failure to consider new and changed circumstances

7 The Minister's obligation is to consider the submissions made and whether deportation would now be unlawful, in particular having regard to any changed circumstances. There is no obligation to narratively discuss the applicants' submissions. Where the Minister indicates that the submissions were considered the applicant has to show positively that this is not the case (see G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] 1 I.L.R.M. 401per Hardiman J.) This has not been shown here. The Minister found that there was no new information submitted that meant that there should be a departure from the original decision. In context, this means that the new information submitted was not deemed sufficient in the particular circumstances of this decision. The Minister's statement cannot read as a finding that no new information whatsoever was submitted for the simple reason that the information submitted is actually discussed. It is clear that the Minister considered that what was submitted was either not new or was alternatively of insufficient weight.

Ground 5B – alleged irrationality of the decision that the collective deportation of the applicants will not result in their separation and accordingly raises no issue in respect of family life.

8 Contrary to the applicants' submission, the approach taken by the Minister seems a valid one. The family unit is being kept together by their collective deportation and therefore there is a limited impact on their family life whether for the purposes of art. 8 of the ECHR (as applied by the European Convention on Human Rights Act 2003) or indeed for the purposes of the constitutional rights involved.

Ground 5C – failure to consider the new situation whereby the applicants have made a home in the State and accordingly that removal would allegedly interfere with their rights under art. 8 of the ECHR.

9 Well-established caselaw makes clear that in the case of unsettled migrants, deportation violates art. 8 only in exceptional circumstances. No such exceptional circumstances have been demonstrated. For example, the second named applicant's educational attainments were achieved while evading deportation. In the circumstances of this case, the applicants' situation was more than merely unsettled, it was unlawful, and in addition the applicants were evading the GNIB. In accordance with the well-established Strasbourg caselaw to which I have alluded, exceptional circumstances are required to hold that there has been any violation of art. 8 (see Rodrigues de Silva and Hoogkamer v. The Netherlands(Application No. 50435/99, European Court of Human Rights, 31st January, 2006, para. 39). Such exceptional circumstances have not been shown.

Ground 5D – allegation that the finding that the second named applicant will be able to adapt to life in Nigeria is irrational given the alleged suicide risk

10 Mr. Phelan submits that the general finding that the second named applicant could adapt to life in Nigeria is irrational. That finding is not necessarily the most favourable approach from the applicants' point of view but it cannot be said to be irrational. The second named applicant has already adapted to one major change so presumably can adapt to another.

11 As regards the alleged suicide risk, reliance is placed on a report of a psychologist who considers that the second named applicant is at a high risk of suicide and should be given permission to remain in the State. A number of factors must be noted. Firstly this is not a medical report; it is a report by a psychologist. The author of the report is not a treating professional and the report is based on a once-off appointment. The second named applicant was...