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

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 345
• Docket Number: No. 1271 J.R./2005
• Court: High Court
• Date: 14 November 2006

OGUEKWE v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN/

CHUKA PAUL OGUEKWE, BLESSING OGUEKWE, 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

AND

HUMAN RIGHTS COMMISSION ATTORNEY GENERAL

NOTICE PARTIES

[2006] IEHC 345

No. 1271 J.R./2005

THE HIGH COURT

BODE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006 IEHC 341

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

IMMIGRATION ACT 1999 S3(3)

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(1)(f)

IMMIGRATION ACT 1999 S3(3)(b)

IMMIGRATION ACT 1999 S3(6)

CRIMINAL JUSTICE (UN CONVENTION AGAINST TORTURE) ACT 2000 S4

CONSTITUTION ART 40.3.1

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

G v BORD UCHTALA 1980 IR 32

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

ABDULAZIZ & CABALES & BALKANALI v UNITED KINGDOM 1985 7 EHRR 471

BERREHAB v NETHERLANDS 11 EHRR 322

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

BOULTIF v SWITZERLAND 2001 33 EHRR 1179

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

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

Supplementary judgment of

Ms. Justice Finlay Geoghegan

1 delivered on the 14th day of November, 2006.

2 These proceedings were heard with the application for judicial review inDeborah Olarantimi Bode and Others v. The Minister for Justice, Equality and Law Reform [2006] No. 102 J.R. and the other similar applications referred to in the judgment delivered by me today in the Bode proceedings. The applicants herein challenge the validity of the decision to refuse Mr. Oguekwe's application on IBC/05 on the same grounds and with the same submissions as advanced in the Bode proceedings.

3 Whilst the factual circumstances of the applicants herein differ from the applicants in the Bode proceedings those differences are not relevant to the submissions made and considered in relation to the alleged invalidity of the decisions taken on the applications on IBC/05 in the Bode judgment.

4 The first named applicant, Mr. Oguekwe, is a national of Nigeria and entered the State on 3rd February, 2005 on a visa. In submission this was stated to be a tourist visa, nothing turns on this. Mr. Oguekwe then applied for asylum on either 4^th or 8^th February, 2005. Nothing turns on the difference in dates stated by the parties. He states he did so in order to "enter the system".

5 The second named applicant is the wife of the first named applicant whom she married in Nigeria on 28^th November, 2001. The second named applicant, Mrs. Oguekwe, has resided continuously in the State since April, 2003.

6 The third named applicant, Prince Roniel Oguekwe, was born in the State on 9^th June, 2003. He is an Irish citizen and has resided continuously in the State since birth.

7 On 9^th February, 2005 Mr. Oguekwe applied for permission to remain in the State under the IBC/05 Scheme. On that day he informed the office of the Refugee Applications Commissioner (ORAC) that he intended withdrawing his claim for asylum. On that date a recommendation was issued from ORAC that he not be declared a refugee. This was by reason of the provisions of s. 13 of the Refugee Act, 1996 (as amended) which mandate such a recommendation where an application is withdrawn.

8 On 25^th February, 2005 the respondent issued a letter refusing the declaration for refugee status and it is stated informing the applicant of his options.

9 On 10^th March, 2005 the applicant was informed that his application under the IBC/05 Scheme was refused by reason of his lack of continuous residency since the birth of his child. He was informed that the fifteen days for the formal response to the letter of 25^th February, 2005 ran from that date. Whilst the letter of 25^th February, 2005 was not put in evidence, the court presumes (as is the norm) that the letter indicated as one of the options the entitlement of Mr. Oguekwe to make submissions under s. 3 of the Immigration Act, 1999.

10 On 8^th March, 2005 Mr. Oguekwe personally submitted representations under s. 3 of the Act of 1999 on a form available for that purpose.

11 In the meantime, Mrs. Oguekwe had made an application under IBC/05 which appears to have been received on 11^th February, 2005. By a decision of 3^rd May, 2005 Mrs. Oguekwe was granted permission to remain in the State for two years with effect from that date. In a letter received by the repatriation unit of the Department on 24^th May, 2005 Mrs. Oguekwe informed the Department of the decision in her favour under IBC/05 and in reliance on that, made representations in support of her husband's application under s. 3 of the Act of 1999 for leave to remain in the State. In that letter she indicates that since receipt of her residency permission she has commenced looking for a job and believes that she will be working soonest. She then states:

"Dear Sir, If I am the only one working it won't be easy on the family to pay our house rent and paying bills and paying our son's crèche money and feeding."

12 Please Sir, if my husband will be granted on basis of humanitarianism so that he can start working too. So he can help take care of the family."

13 By letter dated the 16^th November, 2005, Mr. Oguekwe was informed that the respondent had made a deportation order in respect of him. He was sent a copy of the deportation order of the 9^th November, 2005. In that letter he was also told that he was being sent a copy of "the Minister's consideration pursuant to s. 3 of the Immigration Act 1999 and s. 5 of the Refugee Act 1996". The documents enclosed were an examination of file of a Clerical Officer dated the 28^th September, 2005, with a recommendation from an Executive Officer of the same date and of an Assistant Principle Officer of the 29^th September, 2005. The examination of file is stamped approved by the respondent.

14 It is not disputed that the matters considered by the respondent prior to making the deportation order are those set out in the examination of file dated 28^th September 2005 and that the reasons for the decision must be considered to be those set out therein.

15 By consent order of the 3^rd April, 2006, leave was granted to apply for judicial review seeking the following reliefs and related declarations:

16 1. An order ofcertiorariquashing the decision of the respondent dated the 10^th March, 2005, to refuse to grant residency in the State to the first named applicant.

17 2. An order ofcertiorariquashing the deportation order in respect of the first named applicant dated the 9^th November, 2005.

18 The decision of the 10^th March, 2005, is the decision made on the application on IBC/05.

19 There is no substantive difference between the position of the third named applicant herein as a citizen child and his father as an applicant on IBC/05 so as to distinguish them in any way from the conclusions I reached in the Bode judgment in relation to the revised arrangements known as IBC/05. Accordingly for the reasons fully set out in that judgment and which should be considered to form part of this judgment I have concluded that the decision taken by the respondent on the application on IBC/05 of the first named applicant, as communicated in the letter dated the 10^th March, 2005, is unlawful and invalid, in failing to consider the personal rights of the third named applicant and was taken in breach of the third named applicant's rights under Article 40.3 of the Constitution. Further, it was in breach of the respondent's obligations under s. 3(1) of the European Convention on Human Rights Act, 2003 as it was taken in a manner which is not compatible with the State's obligations under article 8 of the Convention.

20 The applicants challenge the validity of the decision to deport the first named applicant on multiple grounds. The principal grounds relied on were:

21 1. The decision to deport was taken is in breach of the third named applicant, the citizen child's rights under Article 40.3 and Article 41 of the Constitution in that

22 (i) it failed to give due consideration to the facts and factors relating to the personal rights, including the welfare rights, of the third named applicant;

23 (ii) it failed to identify a grave and substantial reason favouring deportation.

24 2. The decision to deport is in breach of the respondent's obligations under s. 3 of the European Convention on Human Rights Act2003, as it was not taken in a manner compatible with the State's obligations under article 8 of the Convention.

25 Other grounds were also advanced. It is proposed to consider the above initially.

26 In deciding whether or not to make a deportation order in respect of the first named applicant, the Minister was exercising the express power conferred by s. 3 of the Immigration Act of1999.

27 Section 3 of the Act of 1999 provides:

"Subject to the provisions of section 5 (prohibition ofrefoulement) of the Refugee Act, 1996, and the subsequent provisions of this section, the Minister may by order (in this Act referred to as "a deportation order") require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State."

28 Subsection 3(3) of the Act of 1999 sets out the classes of persons in respect of whom an order under sub-s. 3(1) may be made. This includes at para. (f) "a person whose application for asylum has been refused by the Minister." It is undisputed that the first named applicant falls into that category.

29 The procedure...