C.A. & S.O.A. v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Patrick J. McCarthy
• Judgment Date: 23 November 2007
• Neutral Citation: [2007] IEHC 393
• Docket Number: [No. 1362 J.R./2005]
• Court: High Court
• Date: 23 November 2007

[2007] IEHC 393

THE HIGH COURT

[No. 1362 J.R./2005]

A (C) & A (OS) v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

C.A. AND S.O.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND C.A.)

APPLICANT

AND

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

RESPONDENTS

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 7

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

CONSTITUTION

REFUGEE ACT 1996 S11(3)

REFUGEE ACT 1996 S13

IRISH NATIONALITY & CITIZENSHIP ACT 2004 S6A

CAMPBELL & COSANS v UNITED KINGDOM 1982 4 EHRR 731

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1 PROTOCOL VII

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

P (F) & L (A) v MIN JUSTICE 2002 1 IR 164

IMMIGRATION ACT 1999 S3(6)

AKUJOBI & EMEKA v MIN JUSTICE UNREP MACMENAMIN 11.1.2007 2007 IEHC 19

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

SIBIYA v MIN JUSTICE UNREP SUPREME 7.2.2006 2006/53/11368

IMMIGRATION LAW

Asylum

Certiorari - Interim order restraining deportation - Lawfulness of deportation of child of applicant - Whether lawful to remove applicant with dependent Irish born child pursuant to deportation order - Child not entitled to citizenship - Whether breach of Convention rights - Whether consideration of rights of applicant by Minister - Procedural fairness - Three stage procedure on claim for asylum - Whether right to oral hearing at Ministerial review stage - Statutory prerequisites to deportation order - Whether substantial grounds for review - Whether requirement for state to which deportation is to take place to be specified - Campbell & Cosans v UK (1982) 4 EHRR 293; Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005); P(F) v Minister for Justice [2002] 1 IR 164; Akujobi v Minister for Justice [2007] IEHC 19, (Unrep, MacMenamin J, 12/1/2007) and Sibiya v Minister for Justice [2006] IESC 371, (Unrep, SC, 7/2/2006) considered - Irish Nationality and Citizenship Act 2004 (No 38), s 6A - Criminal Justice (UN Convention Against Torture) Act 2000 (No 11) - European Convention on Human Rights, articles 2, 3, 6 and 8 - Leave refused and order restraining deportation discharged (2005/1362JR - McCarthy J - 23/11/2007) [2007] IEHC 393

A(C) v Minister for Justice, Equality and Law Reform

Mr. Justice Patrick J. McCarthy

1 This is an application for leave to seek judicial review of a deportation order of the first named defendant made in the exercise by him of the power conferred upon him under the Immigration Act,1999, and on the 23rd November, 2005. In particular, it is sought to obtain leave to seek an order of certiorari quashing such order, an order of prohibition restraining him, his servants or agents, from deporting the second named applicant, declarations that the deportation of the applicants would be incompatible with the provisions of Article 3, and/or Article 6, and/or Article 8 and/or Protocol 7 or Article of the European Convention on Human Rights and Fundamental Freedoms and the European Convention on Human Rights Act, 2003, that the proposed deportation of the applicants is repugnant to the provisions of the Constitution, that the regulations made pursuant to the 1999 Act are invalid having regard to the provisions of the Constitution (which two latter applications were not pursued, rightly, at the hearing, in as much as proceedings of this kind are not an appropriate vehicle for it), and that the proposed deportation violates the rights of the applicants under the United Nations Convention on the Rights of the Child, 1989 (being a relief which, even at this stage, cannot succeed in as much as that convention is not part of the domestic law and interlocutory relief to restrain deportation pending the disposition of the proceedings).

2 The grounds upon which the relief is sought, so far as they were pursued at the hearing of the application are set out below. I follow the enumeration used in the "Statement Grounding Application For Judicial Review", for ease of reference.

3 a 5(b) that there is no deportation order in respect of the second named applicant (and that) it is unlawful for the first named respondent, his servants or agents, to take and transport him to a foreign state without legal authority.

4 b 5(c) It offends natural justice and is unlawful otherwise to compel the first named applicant to take the second named applicant to a foreign state to which she is deported, or to otherwise to have to abandon him.

5 c 5(d) The first named respondent, his servants or agents, has failed and omitted to consider the applicants rights arising under the European Convention on Human Rights and Fundamental Freedoms, 1950, and where necessary, to consider and balance competing factors so as to show that the proposed measure is necessary in a democratic society and proportionate to the object to be achieved.

6 d 5(e) The applicant as a mother and her infant child (and the) first named respondent, his servants or agents, have failed and omitted to have regard to their welfare and the protection due to them under the provision of Bunreacht na hÉireann, 1937.

7 e 5(g) The first named respondents opinion that refoulement will not occur if the applicants are expelled or otherwise sent (to) Nigeria is irrational.

8 f 5(h) There is an arguable case (and the) balance of convenience favours not deporting the applicants and deportation could cause irreparable harm which could not be compensated by damages.

9 g 5(i) The applicants are persons without means and the first named applicant is not permitted to work in the state. Their right to assert their human rights, including an effective remedy and access to justice, cannot be exercised without recourse to this honourable court.

10 3. The application for leave to seek judicial review was preceded by the issue of plenary proceedings on the 9th December; this followed an ex parte application on the previous day on behalf of the first named applicant for an order restraining the first named defendant, his servants or agents, from deporting the first named applicant, on foot of the deportation order, until after the 15th December, 2005, or further order; that application was made in circumstances of urgency, and on an undertaking to issue a summons and swear, or cause to be sworn, an appropriate affidavit deposing to the facts giving rise to it. That of course was an interim order and I am not furnished with the interlocutory order. I infer, however, that the first named respondent must have given an undertaking to the court not to deport the first named applicant pending the disposition of the present proceedings, or else, that an interlocutory order was made to that effect.

11 4. The evidence in the case is contained in the grounding affidavit of the first named applicant (sworn on the 14th December, 2005), the affidavit of the first named applicants solicitor, Mr Niall Sheerin (sworn on the 20th December, 2005) and the affidavit of Mr Cassidy, an Assistant Principal Officer of the first named respondent's department (sworn on the 21st June, 2006). These affidavits exhibit a number of relevant documents. I will seek to summarise the evidence (and the facts do not appear to be in dispute) for the purpose of this judgment, below.

12 5. The applicant asserts that she arrived in the State on the 21st February, 2005; in his affidavit, Mr Cassidy states that her arrival was on the 20th. I do not think that this discrepancy is material, because she made her application for asylum on the 21st February, 2005: she was informed by letter on the same date that she was to be interviewed on behalf of the Refugee Applications Commissioner on the 7th March, 2005, and of course she completed a written application for a refugee status (in the form of a questionnaire) on the 22nd February, 2005. She was afforded the benefit of the services of the Refugee Legal Service and attended at her interview on the 7th March, and on the 11th March, the Commissioner (by one of his officers) recommended that she did not qualify for refugee status. The applicant was informed of this fact on the following day and she was furnished with a copy of that officer's report (as was the Refugee Legal Service). An appeal was entered to the Refugee Appeals Tribunal on the 8th April, 2005, and documents in addition to those furnished to the Commissioner were sent to the Tribunal in support of her appeal, that ultimately being heard on the 3rd May, 2005. Later, on the 1st June, 2005, additional documents in support of the appeal were forwarded to the Tribunal, but it is clear that this was prior to the date of its decision, being the 27th of June, 2005, and there is no suggestion that all of the documents (including those furnished on the 1st June, 2005) were not seen by the member of the Tribunal (Mr David Andrews S.C.) prior to his decision. The applicant was thereafter notified of the decision and a copy thereof was furnished to her (with, of course, notification to the Refugee Legal Service) and, further, whilst the Refugee Legal Service in Dublin had represented her up to that date, that in Cork now so represented her. The matter then passed into the hands of the Minister or his immediate officers, the recommendation of the Tribunal was approved by a Deciding Officer of the Ministerial Decisions Unit, and the Minister decided to make a deportation order having accepted...