O (CO) [Nigeria] and Others v Min for Justice and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 04 March 2015
• Neutral Citation: [2015] IEHC 139
• Date: 04 March 2015

[2015] IEHC 139

THE HIGH COURT

[No. 795 J.R./2011]

O (CO) [Nigeria] & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

C.O.O (NIGERIA) AND

G.F.O (A MINOR SUING BY HER MOTHER AND NEXT FRIEND C.O.O)

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

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

APPLICANTS

AND

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

RESPONDENTS

Asylum – Immigration & Nationality – Deportation – Interference with family rights – Thirty-first amendment to the Constitution

Facts: The applicants sought an order of certiorari by way of judicial review for quashing their deportations orders. The applicants sought a declaration that their deportation was in violation of Ar. 8 of the European Convention on Human Rights and Fundamental Freedoms of 1950.

Mr. Justice Robert Eagar granted an order of certiorari quashing the deportation order of the fourth named applicant. The Court observed that there was a failure on part of the first named respondent to examine the position of the fourth named applicant pursuant to s. 3(6) of the Immigration Act 1999 as amended by the Illegal Immigrations (Trafficking) Act 2000. The Court refused to grant an order for certiorari for quashing the deportation orders of the first, second and third named applicant. The Court held that the circumstances and conditions of those applicants had been dealt at large and there was no infirmity in the orders made by the first named respondent. The Court opined that if the thirty-first amendment to the Constitution became the law, there would be obligation upon the first named respondent for the welfare of the second and the third named applicants.

1 1. This is an application for an order of certiorari by way of judicial review quashing the deportation orders directed to the Applicants dated the 5 ^th August 2011 and further a declaration that the deportation of the Applicants violates the provisions of Article 8 of the European Convention on Human Rights and Fundamental Freedoms of 1950.

2 2. The grounds upon which the reliefs were sought are summarised in the claim that the first named Respondent failed and omitted to make the best interests of the infant Applicants a primary consideration in the first named Respondent's decision whether to make deportation orders in respect of them and the failure of the first named Respondent to consider the Applicants' constitutional rights.

3 3. The history of this matter is contained in the affidavit of C.O.O, the mother, who is the first Applicant and the mother of the other three infant Applicants. She is a Nigerian national and she was born in Nigeria on the 19 ^th August 1967. She came to Ireland in December 2006 from Nigeria to seek asylum. She is married but had no contact from her husband and the father of the three minor Applicants since she left Nigeria and in her affidavit she states she believes the relationship to be over. The first named Applicant had a son in the State on the 16 ^th February 2007 by virtue of the Irish Nationality and Citizenship Act 2004 the child is not an Irish citizen.

4 4. The second named Applicant was born in Nigeria on the 12 ^th May 2002 and arrived in the State on the 3 ^rd September 2008 as an unaccompanied minor. The third named Applicant was born in Nigeria on the 4 ^th November 2004. He arrived with the second named Applicant on the 3 ^rd September 2008 as an unaccompanied minor. As said below the fourth named Applicant is the son of the first named Applicant having been born in Ireland on the 16 ^th February 2007.

5 5. Applications were made by each of the Applicants for refugee status including an appeal to the Refugee Appeals Tribunal.

6 6. Subsequent to this the four Applicants applied to the first named Respondent for subsidiary protection but this was also unsuccessful and deportation orders were made on the 5 ^th August 2011. It is this decision that is challenged by the Applicants.

7 7. Counsel on behalf of the Applicants indicated that the examination of the files undertaken pursuant to the provisions of s.3 (6) of the Immigration Act 1999 (as amended) did not refer to "the best interests of the child". In particular he complains that in the case of the child born in Ireland, the fourth named Applicant, there is no examination of his interests undertaken at all, his case being subsumed completely into his mother's claim. In the case of the second and third named Applicants there is nothing beyond a recording of age and class in school. He referred to the case of Dos Santos v. The Minister for Justice & Ors [2014] IEHC 559, a judgment of McDermott J. He also contended that there was no application of whether the proposed deportations would offend the provisions of the Constitution of Ireland and in particular Article 40.3, Article 41 and Article 42. He also contended that the Supreme Court decision in Oguekwe v. The Minister for Justice Equality and Law Reform [2008] IEHC 25 required the first named Respondent to consider the Applicants' rights under the European Convention on Human Rights and Fundamental Freedoms of 1950. He submitted that the first named Respondent accepted that the deportations are an interference with family life and proceeds to conclude that there is no grave interference.

8 8. He also referred to the provisions of the Thirty-First Amendment of the Constitution. This provides for an Article expressly related to children's rights. The Thirty-First Amendment is currently the subject of a legal challenge. The Jordan Case has been heard by the Supreme Court and judgment has been reserved by that court.

9 9. Counsel on behalf of the Respondent argued that the quality of life that the Applicants will experience in Ireland may be higher than that which they expect to enjoy in Nigeria. He submitted that the first named Respondent considered the welfare of the minor Applicants and concluded that it was best served by them remaining with the first named Applicant and he referred in particular to Dos Santos, a decision of McDermott J. on the 19 ^th November 2014. He also referred to the decision of Dada v. The Minister for Justice Equality and Law Reform [2006] IEHC 140 a, decision of O'Neill J. He also referred to the decision of Adeniron v. The Minister for Justice Equality and Law Reform [2010] IEHC 92, where Clark J. held that the deportation of a Nigerian mother and children all of whom were failed asylum seekers did not involve any interference with family rights under Article 8 of the Convention. He also referred to R. (Mahmood) v. The Home Secretary [2001] 1 WLR 840 where the House of Lords laid down the English and Welsh position under the European Convention on Human Rights in relation to asylum seekers. He also referred to the judgment of MacEochaidh J. in the application for leave to seek judicial review in the case of Dos Santos & Ors v. The Minister for Justice Equality and Law Reform & Ors which was delivered by him on the 30 ^th May 2013.

Examination of file by the first named Respondent

10 10. The relevant provisions for this are contained in s.3 of the Immigration Act 1999 as amended by the Illegal Immigrants (Trafficking) Act 2000. Section 3 provides for the first named Respondent to make by order a deportation order by requiring any non nationals 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. Section 3 (6) sets out the issues which the first named Respondent shall have regard to in making a deportation order.

11 11. Section 3(6) states as follows:-

2 2 "(6) In determining whether to make a deportation order in relation to a person, the Minister shall have regard to-

(a) the Age of the person; (this Court's emphasis)

(b) the Duration of residence in the State of the person; (this Court's emphasis)

(c) the family and domestic circumstances of the person;

(d) the nature of the person's connection with the State, if any; (this Court's emphasis)

(e) the employment (including self-employment) record of the person;

(f) the employment (including self-employment) prospects of the person;

(g) the character and conduct of the verson both within and (where relevant and ascertainable) outside the State (including any criminal convictions); (this Court's emphasis)

(h) humanitarian considerations;

(i) any representations duly made by or on behalf of the person;

(j) the common good; and

(k) considerations of national security and public policy, so far as they appear or are known to the Minister."

12 12. In this case the deportation orders were made by the first named Respondent on the 5 ^th August 2011 and I propose to deal with the issues raised by and on behalf of the first named Respondent.

a) Age

The examination of the file in relation to C.O.O. included an examination in relation to M.F.O. the fourth named Applicant. That decision marked the ages of the two Applicants at the time of writing the submission.

b) Duration of residence in the State of the Person

This was also dealt with in relation to the arrival in the State of the first named Applicant on the birth of the fourth named Applicant in Ireland.

c) The family and domestic circumstances of the person

It is noted by the executive officer that at her asylum interview she also mentions three children who are her husbands born between March 1994 and July 1996 and that no details were given in relation to these children. The domestic circumstances as set out by the executive officer are that the second named and third named Applicants arrived in the State as unaccompanied minors and have had been reunited with their mother and they are all living together. Nothing further is said of the domestic circumstances.

d) Nature of persons...