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

 
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[2008] IESC 25

THE SUPREME COURT

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No: 489/2006]
Oguekwe & Ors v Min for Justice
Between/
Chuka Paul Oguekwe, Blessing Oguekwe, Prince Roniel Oguekwe, (a minor suing by his father and next friend, Chuka Paul Oguekwe)
Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform
Respondent/Appellant

and

The Human Rights Commission and the Attorney General
Notice Parties

489/2006 - Murray Denham [nem diss] Fennelly Kearns Finnegan - Supreme - 1/5/2008 - 2008 3 IR 795 2008 2 ILRM 481 2008 51 10890 2008 IESC 25

IMMIGRATION ACT 1999 S3

BODE v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 62

DIMBO v MIN JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 26

FARES v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 65

OVIAWE v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 66

DUMAN v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 64

ADIO v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 63

EDET v MIN JUSTICE UNREP

REFUGEE ACT 1996 S5

IMMIGRATION ACT 1999 S3(6)

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40.3

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8.2

IMMIGRATION ACT 1999 S3(5)(a)

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S2(c)

IMMIGRATION ACT 1999 S2(d)

IMMIGRATION ACT 1999 S2(e)

CONSTITUTION ART 40.3.1

RYAN v AG 1965 IR 294

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

CIRPACI (ORSE MCCORMACK) v MIN JUSTICE 2005 2 ILRM 547

MAHMOOD, R v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840

ABDULAZIZ, CABALES & BALKANDALI v UNITED KINGDOM 1985 7 EHRR 471

POKU v UNTED KINGDOM 1996 22 EHRR CD 94

BERREHAB v NETHERLANDS 1989 11 EHRR 322

BOUJLIFA v FRANCE 2000 30 EHRR 419

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)

CONSTITUTION ART 40.3

Abstract:

Immigration - Asylum - Deportation - Judicial review - Administrative scheme - Irish born child - Right to remain - Constitutional and conventional rights - Immigration Act, 1999 - Whether the Minister erred in refusing the first named applicants’ application for leave to remain and in making a deportation order.

Facts: The first named applicant was the father of an Irish born citizen and the husband of the second named applicant, who had been granted permission to remain in the State. The respondent herein appealed from the determination of the High Court quashing the decision of the Minister refusing the first named applicant permission to remain in the State under the Irish Born Child Scheme 2005 (IBC 05 Scheme). The appellant also appealed from the judgment of the High Court quashing the decision of the Minister making a deportation order under section 3 of the Immigration Act, 1999, as amended in relation to the applicant. The applicant’s application for permission to remain was refused on the ground that he failed to meet the requirement of continuous residency in the State since the birth of his child. The applicant had challenged the decision to deport him on the grounds that the Minister failed to consider the constitutional rights of the citizen child and failed to identify a grave and substantial reason favouring deportation.

Held by the Supreme Court (Denham J: Murray C.J., Fennelly, Kearns & Finnegan JJ) concurring) in allowing the appeal in relation to the issue of the Scheme and dismissing the appeal relating to the deportation issue:

1. That the general facts and law in relation to the Scheme were set out in the Bode decision. The terms of the IBC 05 Scheme were established clearly by the Minister and the scheme included a requirement of continuous residency in the State with the child. The applicant did not meet that requirement and therefore the Minister acted within the terms of the scheme in refusing his application.

2. That when deciding to make a deportation order the Minister was required to consider the constitutional and Convention rights of the applicants. That included express consideration of, and a reasoned decision on, the rights of the Irish citizen child. The Minister failed to do so in this case.

Reporter: L.O’S.

1

Judgment delivered the 1st day May, 2008 by Denham J.

2

Judgment delivered by Denham J. [nem diss]

1. Two Issues
3

There are two issues before the Court in this case. First, 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. 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
4

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 named 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
5

The Minister for Justice, Equality and Law Reform, the respondent/appellant, 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.

6

4. These related cases are:

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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.

16

5. Judgment on the appeals in Bode, Fares, Oviawe, Duman and Adio were delivered by the Court on the 20 th December, 2007. The general facts and law relating to this first issue in all eight cases were set out in the Bode judgment. The particular facts, law, and decision of this case are set out herein.

6. Parties
17

In this case the first named applicant/respondent is Chuka Paul Oguekwe, hereinafter referred to as 'the first named applicant'. He is married to Blessing Oguekwe, the second named applicant/respondent, hereinafter referred to as 'the second named applicant'. Prince Roniel Oguekwe, the third named applicant/respondent, and hereinafter referred to as 'the third named applicant', was born in Ireland on the 9 th June, 2003. The Minister for Justice, Equality and Law Reform is the respondent/appellant 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 23 rd day of March, 2007, and is referred to as 'the Commission'. The Attorney General was joined as a Notice Party.

7. Particular Facts
18

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 in the Bode case.

19

The second named applicant entered the State in April, 2003 and applied for asylum. She gave birth to the third named applicant on the 9 th June, 2003. The...

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