O'C (R) (A Minor) & R (v) v Min for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 22 October 2008
• Neutral Citation: [2008] IEHC 324
• Court: High Court
• Date: 22 October 2008

[2008] IEHC 324

THE HIGH COURT

[No. 1156 J.R./2008]

O'C (R) (A Minor) & R (V) v Min for Justice

JUDICIAL REVIEW

BETWEEN

R. O'C. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND V.R.) AND V. R.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

G v DPP 1994 1 IR 374

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.1

OGUEKWE v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

IMMIGRATION

Deportation

Family rights - Parent of two Irish citizen children - Interference with right to respect for family life - Stateable grounds - Whether decision to affirm deportation constituted interference with right to respect for family life with Irish born citizen children - Appropriate legal principles - Whether decision to affirm deportation justified - Whether decision disclosed substantial reason for affirming deportation order - Whether adequate assessment of proportionality of decision to affirm deportation order - G v Director of Public Prosecutions [1994] 1 IR 374 and Oguekwe v Minister for Justice [2008] IESC 25 (Unrep, SC, 1/5/2008) applied - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29)- European Convention on Human Rights Act 2003 (No 20), s 3 -Leave granted (2008/1156JR - Finlay Geoghegan J - 22/10/2008) [2008] IEHC 324

O'C (an infant) v Minister for Justice, Equality and Law Reform

1 Ms. Justice Finlay Geoghegan delivered on the 22nd day of October, 2008

2 1. On Monday 20 ^th October, 2008, I heard an ex parte application for leave to issue judicial review seeking, primarily, an order of certiorari of the decision of the respondent to affirm a deportation order against the second named applicant which was issued on 10 ^th October, 2008.

3 2. The second named applicant is a citizen of Georgia. He came to this country in October 2003, and sought refugee status. This was refused. A deportation order was made against him on 20 ^th January, 2006. This followed a departmental analysis report for the purposes of s. 3 of the Immigration Act 1999, completed in July 2005.

4 3. The second named applicant subsequently did not report to the Garda National Immigration Bureau and was classed as an evader. In August, 2008, he was stopped by Gardaí for not wearing a seatbelt in the back of a car. He was asked for ID and reported to GNIB and transferred to Cloverhill Prison. On 12 ^th September, 2008, his solicitor made an application for revocation of the deportation and/or leave to remain, as the parent of Irish citizen children.

5 4. The second named applicant has two daughters, L.K., born on 30 ^th December, 2004, and R. O'C, born on 22 ^nd November, 2006. His two daughters have different mothers, each of whom are Irish citizens. The second named applicant does not have a continuing relationship with either of the mothers. They are both now married to other men and residing in Ireland.

6 5. The application made on behalf of the applicant to the respondent in September 2008, contained evidence of involvement of the second named applicant in the lives of each of his two daughters. It was accompanied by a letter from the mother of the first named applicant confirming this, and the fact that the second named applicant is a joint guardian of the first named applicant, in accordance with Irish law.

7 6. In September 2008, there were proceedings seeking to restrain the deportation of the second named applicant, pending the determination of his application for revocation of the deportation order and/leave to remain. He was granted an injunction in the course of those proceedings. He was ultimately released from Cloverhill Prison on conditional release. The decision challenged herein was taken subsequent to the commencement of those proceedings.

8 7. Since the respondent's decision on the application which was to affirm the earlier deportation order, the respondent, through his officials, has made clear that arrangements are being put in place for the imminent deportation of the second named applicant. In those circumstances, the applicant also sought interim relief restraining his deportation, pending the determination of this application and leave to bring an interlocutory application at short notice.

Leave application

9 8. Counsel for the applicants submitted that this is not an application which is subject to s. 5 of the Illegal Immigrants (Trafficking) Act 2005, and accordingly, the application for leave should be heard on an ex parte basis and in such circumstances, the well known principles set out by the Supreme Court in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 at p. 377 apply. Insofar as relevant, the conditions which must be established by the applicant, in accordance with that decision, are:

10 (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

11 (c) That on those facts, an arguable case in law can be made out that the applicant is entitled to the relief which he seeks.

12 There are three other conditions set out which relate to sufficient interest, the application being made promptly, and this being the only effective remedy, none of which are in issue on this application.

13 9. It is implicit in the above that the statable grounds and arguable case in law must be contained in the statement of grounds in the proceedings. On an application for leave to issue judicial review, the Court will only grant leave to seek the relief on grounds which are specified in the statement of grounds, subject, of course, to the discretion given the Court by the Superior Court Rules to allow amendment or add grounds. However, in practice, the...