Chuka Paul Oguekwe and Others v The Minister for Justice, Equality and Law Reform

 
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[2008] IESC 25

Supreme Court

[S.C. No. 489 of 2006]
Oguekwe v. Minister for Justice
Chuka Paul Oguekwe, Blessing Oguekwe and Prince Roniel Oguekwe (a minor suing by his father and next friend Chuka Paul Oguekwe)
Applicants
and
The Minister for Justice, Equality and Law Reform, Respondent, The Human Rights Commission, Amicus Curiae and The Attorney General, Notice Party

Cases mentioned in this report:-

Abdulaziz v. United KingdomHRC (1985) 7 E.H.R.R. 471.

Berrehab v. The NetherlandsHRC (1989) 11 E.H.R.R. 322.

Bode (a minor) v. Minister for JusticeUNKUNKIR [2006] IEHC 341, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006); [2007] IESC 62, [2008] 3 I.R. 664.

Boujlifa v. FranceHRC (2000) 30 E.H.R.R. 419.

T.C. v. Minister for JusticeUNKIRDLRM [2005] IESC 42, [2005] 4 I.R. 109; [2005] 2 I.L.R.M. 547.

The Illegal Immigrants (Trafficking) Bill 1999IR [2000] 2 I.R. 360.

A.O. & D.L. v. Minister for JusticeIR [2003] 1 I.R. 1

Oquekwe v. The Minister for JusticeUNK [2006] IEHC 345, (Unreported, High Court, Finlay Geoghegan J, 14th November, 2006).

Poku v. United KingdomHRC (1996) 22 E.H.R.R. C.D. 94.

R. (Mahmood) v. Secretary of State for the Home DepartmentWLR [2001] 1 W.L.R. 840.

Ryan v. The Attorney GeneralIR [1965] I.R. 294.

Immigration - Residence - Deportation - Foreign national parents of Irish citizen child - Refusal of application for residency under administrative scheme - Nature of scheme - Considerations when making decision under scheme - Factors to be taken into account when making deportation order - Nature of consideration of facts relevant to citizen child - Nature of consideration of rights under European Convention on Human Rights - Type of inquiry required of Minister - Whether grave and substantial reason for deportation - Whether decision to deport had to be reasonable and proportionate - Immigration Act 1999 (No. 22), s. 3 - European Convention on Human Rights, article 8.

Cur. adv. vult.

Murray C.J

1st May, 2008

1 I have read the judgment about to be delivered by Denham J. and I agree with it.

Denham J

1.Two issues

2 There are two issues before the court in this case. Firstly, there is an appeal from the determination of the High Court to quash the decision of the Minister under the Irish born child 05 scheme (IBC 05). Secondly, there is an appeal from the judgment of the High Court quashing the decision of the Minister to make a deportation order under s. 3 of the Immigration Act 1999, as amended.

2.First issue

3 The first issue in this case is the decision of a Minister of the Government, made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It was submitted, on the one hand, that, inter alia, in this scheme the constitutional and convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither constitutional nor convention rights arose to be considered. Thus the nature of the scheme is at the core of this aspect of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the matter is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, constitutional and convention rights remaining yet to be considered. The central issue is the refusal by the Minister of the first applicant's application under the IBC 05 scheme. In this, and the related judgments, the term "foreign national" means a national other than an Irish citizen.

3.Eight cases

4 The Minister for Justice, Equality and Law Reform, the respondent, hereinafter referred to as "the Minister", has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In an eighth case, the Minister is appealing against the order for costs made in the High Court. No submissions have yet been on this latter case. In two cases, this being one of them, the High Court also quashed the decision of the Minister to make a deportation order under s. 3 of the Immigration Act 1999, as amended, which the Minister has also appealed, and which is the second issue in this judgment.

5 4. These related cases are:-

  1. (i) Bode v. The Minister, Appeal No. 485/2006

  2. (ii) Oguekwe v. The Minister, Appeal No. 489/2006

  3. (iii) Dimbo v. The Minister, Appeal No. 484/2006

  4. (iv) Fares v. The Minister, Appeal No. 483/2006

  5. (v) Oviawe v. The Minister, Appeal No. 480/2006

  6. (vi) Duman v. The Minister, Appeal No. 482/2006

  7. (vii) Adio v. The Minister, Appeal No. 481/2006

  8. (viii) Edet v. The Minister, Appeal No. 005/2007

The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a principal officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed on behalf of the Minister in all cases.

6 5. Judgment on the appeals inBode, Fares,Oviawe, Duman andAdio were delivered by the court on the 20th December, 2007. The general facts and law relating to this first issue in all eight cases were set out in Bode (a minor) v. Minister for JusticeUNKIR [2007] IESC 62, [2008] 3 I.R. 664. The particular facts, law, and decision of this case are set out herein.

6. Parties

7 In this case the first applicant is Chuka Paul Oguekwe, hereinafter referred to as "the first applicant". He is married to Blessing Oguekwe, hereinafter referred to as "the second applicant". Prince Roniel Oguekwe, hereinafter referred to as "the third applicant", was born in Ireland on the 9th June, 2003. The Minister for Justice, Equality and Law Reform is the respondent and is referred to as "the Minister". The Human Rights Commission was given leave to participate as amicus curiae on the appeal by order of the 23rd March, 2007, and is referred to as "the Commission". The Attorney General was joined as a notice party.

7. Particular facts

8 The particular matter raised on the first issue in the case relates to the requirement of continuous residence under the IBC 05 scheme, which issue was considered also inBode (a minor) v. Minister for JusticeUNKIR [2007] IESC 62, [2008] 3 I.R. 664.

9 The second applicant entered the State in April, 2003 and applied for asylum. She gave birth to the third applicant on the 9th June, 2003. The first applicant is married to the second applicant. The first and second applicants are nationals of Nigeria. The first applicant entered the State on the 3rd February, 2005. He stated in his affidavit that he came to Ireland so that he could apply for residency on the basis of the third applicant's citizenship and reside with him. He made his application for residency under the IBC 05 scheme on the 9th February, 2005.

10 By letter dated the 10th March, 2005, the Minister stated that the application had been refused on the ground that the first applicant had not shown that he had resided in the State with his Irish citizen son, or that he had played an active part in his upbringing, on a continuous basis since his birth.

11 The second applicant also applied under the IBC 05 scheme and was successful. She was informed of this decision on the 3rd May, 2005.

8. High Court proceedings

12 The applicants brought High Court proceedings to challenge the refusal by the Minister of the first applicant's application under the IBC 05 scheme.

9. The High Court order on the IBC 05 scheme

13 The High Court held that the applicants were entitled to an order of certiorari in respect of the refusal of the first applicant's application under the IBC 05 scheme, for the reasons given in the judgment of the High Court inBode (a minor) v. Minister for JusticeUNK [2006] IEHC 341, (Unreported, High Court, Finlay Geoghegan J., 14th November, 2006).

10. Appeal

14 The Minister has appealed against the judgment and orders of the High Court.

11. Decision on IBC 05 ministerial decision

15 I would allow the appeal of the Minister, on this issue. My general reasons are set out in Bode (a minor) v. Minister for JusticeUNKIR [2007] IESC 62, [2008] 3 I.R. 664. In that judgment the nature of the IBC 05 scheme was described in detail. It was an administrative scheme established by the Minister, exercising executive power, to deal with a unique group of foreign nationals in a generous way, on the criteria of the scheme. The parameters of the scheme were clearly stated and included the requirement of continuous residence.

16 The first applicant entered Ireland on the 3rd February, 2005. (The third applicant had been born in Ireland on the 9th June, 2003). The first applicant stated that he wished the third applicant to grow up in Ireland. He averred that, "I came to Ireland so that I could apply for residency on the basis of Prince's Irish citizenship and reside here with...

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