C.O. (Nigeria) v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 November 2017
• Neutral Citation: [2017] IEHC 725
• Docket Number: [2017 No. 891 J.R.]
• Court: High Court
• Date: 24 November 2017

[2017] IEHC 725

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 891 J.R.]

BETWEEN

C.O. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Asylum, Immigration and Nationality – S. 3(11) of the Immigration Act, 1999 – Revocation of deportation order – Misconduct of giving false information – Judicial review – Expiration of visa – Unlawful stay

Facts: The applicant sought an order of certiorari by way of the present judicial review application for quashing the decision of the first respondent under s. 3(11) of the Immigration Act, 1999 to issue the deportation order against the applicant. The applicant had been residing in the State unlawfully upon expiration of her visa. Following the publication of the McMahon report, the applicant applied to the first respondent for regularisation of her status, which was refused by the first respondent. The first respondent cited that the applicant failed to meet the relevant criteria set out in the said report and thus, her status could not be regularised.

Mr. Justice Richard Humphreys dismissed the application. The Court held that the applicant had been an evader and she did not have any standing to make the case. The Court noted that the applicant was well aware of the criteria needed for the regularisation of her status. The Court held that the applicant also provided contradictory and materially false information and had failed to supply addresses or regularise her position.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of November, 2017

1 The applicant was given a visitor's visa to come to the State in November, 2005. That visa expired but she stayed on unlawfully. She stated that she had a partner, three children and two siblings in Nigeria. She was refused a further visa in 2006, but again remained in the jurisdiction. She applied for asylum on 15th January, 2008 and provided an address in Ballyjamesduff. That application was refused. She applied for subsidiary protection and claimed to be living in Ballyjamesduff with a particular pastor and his wife. That application was also rejected. She then made submissions under s. 3 of the Immigration Act, 1999, providing an address in Tramore. A deportation order was made in respect of the applicant on 12th February, 2009. She failed to present to the Garda National Immigration Bureau (GNIB) on the 12th March, 2009 and thereafter was an evader for almost eight years.

2 In late 2014, the Report of the Working Group on Improvements to the Protection Process (the McMahon report) was presented to government. That report was published on 30th June, 2015, containing recommendations about circumstances in which certain illegal immigrants could have their status regularised. The approach of the Department of Justice and Equality has been to attempt to identify individual cases where the recommendations might be applied. The applicant then engaged in some limited presentation to the GNIB between May and November, 2017. She failed to notify her address to the GNIB prior to February, 2017. On 4th August, 2017 the applicant, through solicitors, made submissions relying on the McMahon report and stating that she has always resided in the State with her sister. It is not possible to square that statement with previous information submitted on behalf of the applicant. On 9th November, 2017 the applicant was notified that the deportation order had been affirmed under s. 3(11) of the 1999 Act. She was arrested on 15th November, 2017. She now applies by way of judicial review seeking an order of certiorari challenging the decision under s. 3(11). In that regard I have received evidence in relation to her conduct from D/ Garda Derek Thompson and Mr. James Boyle, which in the absence of cross-examination must be accepted. That includes evidence of significant misconduct including the giving of false information (see in particular paras. 42 and 43 of Mr. Boyle's affidavit).

3 I have heard submissions from Mr. Mark de Blacam S.C. (with Mr. Garry O'Halloran B.L.) for the applicant and from Ms. Sara Moorhead S.C. (with Ms. Sinead McGrath B.L.) for the respondent.

4 At the level of first approximation, statements of grounds in asylum cases can be viewed as falling into three broad categories. First of all, the Focused Application containing a case-specific complaint or a genuinely new net point; a type which is not as predominant as one might necessarily like. Secondly, the Type Baroque, an approach in defiance of the stipulations of the Supreme Court in Babington v. Minister for Justice Equality and Law Reform [2012] IESC 65; a product of the scissors and paste pot, generating intricate legal candyfloss for page after tediously generalised page with every attempt made to obscure any good point that might be in the case. The third type is the Beaten Docket, which consists of points that have already been rejected. This case is a melancholy illustration of the third type.

5 Mr. de Blacam limited his case to a complaint arising from the alleged ministerial policy regarding regularising certain illegal immigrants, a point I have rejected on multiple occasions: S.T.E. v. Minister for Justice and Equality [2016] IEHC 379 where the point is rejected at paras. 32 to 34, da Silva v. Minister for Justice and Equality [2016] IEHC 649 at paras. 10 and 11, D.E. v....