Collins B. Oladapo and Ors v Minister for Justice, Equality and Law Reform
|Mr. Justice Cooke
|12 February 2010
| IEHC 88
|[No. 3 .J.R./ 2010]
|12 February 2010
 IEHC 88
THE HIGH COURT
CONSTITUTION ART 40
IMMIGRATION ACT 2004 S13
IMMIGRATION ACT 2003 S5(2)
IMMIGRATION ACT 1999 S3
IMMIGRATION ACT 1999 S3(6)(A)
IMMIGRATION ACT 1999 S3(6)(B)
IMMIGRATION ACT 1999 S3(6)(C)
IMMIGRATION ACT 1999 S3(6)(D)
IMMIGRATION ACT 1999 S3(6)(E)
IMMIGRATION ACT 1999 S3(6)(F)
IMMIGRATION ACT 1999 S3(6)(G)
IMMIGRATION ACT 1999 S3(6)(H)
IMMIGRATION ACT 1999 S3(6)(I)
IMMIGRATION ACT 1999 S3(6)(J)
IMMIGRATION ACT 1999 S3(6)(K)
IMMIGRATION ACT 1999 S3(6)
CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4
REFUGEE ACT 1996 S5
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
DIMBO v MIN FOR JUSTICE UNREP SUPREME 1.5.2008 2008/12/2530 2008 IESC 26
OGUEKWE v MIN FOR JUSTICE 2008 IESC 25 2008/51/10890
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(1)
Family rights - Parent - Minor Irish citizens - Representations - Pro forma considerations taken into account - Alleged assurances - Alleged failure to take into account steps taken by applicant - Alleged prejudicial reference to questioning by gardaí - Alleged failure to give regard to absence of claim for social welfare - Alleged failure to analysis risk faced by minor applicants - Ministerial obligations - Mandatory considerations - Effect of deportation order on spouse and children of prospective deportee - Rights to respect for privacy and family rights - Whether decision reasonable and proportionate - Business venture of applicant - Balancing of rights - Dimbo v Minister for Justice, Equality and Law Reform  IESC 26 (Unrep, SC, 1/5/2008); Oguekwea v Minister for Justice, Equality and Law Reform  IESC 25 and Ofobuike v Minister for Justice, Equality and Law Reform  IEHC 89 (Unrep, Cooke J, 13/1/2010) considered - Refugee Act 1996 (No 6), s 5 - Immigration Act 1999 (No 22), s 3 - Leave refused (2010/3JR - Cooke J - 12/2/2010)  IEHC 88
O(C) v Minister for Justice, Equality and Law Reform
Facts The first named applicant ("the applicant") instituted judicial review proceedings seeking to challenge a deportation order made against him. The second named applicant was the applicant's wife and the third and fourth named applicants were their children, had been born in Ireland and were Irish citizens. It was claimed that in making the deportation order, the considerations that were taken into account by the Minister were purely pro-forma and in addition it was contended that assurances had been given at the Minister's constituency office. The applicant also argued that a reference to his flouting of immigration law had failed to take account of the pro-active steps that he had made to regularise his position and that there had also been a faulty analysis of the applicant's opportunities for doing business in Ireland. The conclusion that his wife and children had lived without him in the State for three years was also incorrect.
Held by Mr. Justice Cooke in refusing the application for leave to seek judicial review. A detailed and meticulous consideration had been given to all the matters that had been put before the Minister. The evaluation and balancing of the personal and family rights of the applicants was fact-specific and entirely concerned with their personal situation and circumstances. The business that the applicant had claimed to be conducting in the State had been done so illegally and no serious explanation had been given regarding the business. The views of the applicant's wife and children regarding his deportation had been fully considered. Detailed consideration had been given to the respect for private and family life under Article 8 of European Convention on Human Rights. The reasons given for the decision were clearly cogent and founded on undisputed facts relating to the applicant's personal history, conduct and family circumstances.
In this case leave is sought to apply for judicial review of a deportation order made against the first named applicant on 8th December, 2009 and in particular, for an order of certiorari to quash it.
The first named applicant is from Nigeria. The second named applicant is his wife. They were married in Nigeria and lived there together before she left in November, 2001 and came to Ireland. The first named applicant has a daughter who remains in Nigeria although in what circumstances and with what support the Court has not been told. The second named applicant is not that daughter's mother and what role the daughter plays in the family life of these applicants is not mentioned. (The first named applicant is hereinafter referred to as "the applicant"; the second as the "applicant's wife" and the remaining applicants as "the minor applicants".)
The third and fourth named applicants are children of the applicant and his wife and were born in Ireland in 2002 and 2003 respectively and are Irish citizens. The third minor applicant was also born in the State to the second named applicant in June, 2008 and it is claimed that the first named applicant is her father although his name does not appear on her birth certificate and no explanation has been given to the Court as to why this should be so.
This is not a case in which the applicant is a failed asylum seeker who has been through the procedures of the 1996 Act and been refused a declaration of refugee status. As mentioned, the applicant's wife decided to leave the applicant in Nigeria in November, 2001 when already pregnant with their first child and to come to Ireland. The applicant said that after the birth of that child he came to Ireland and applied for asylum on 15th July, 2002 but withdrew the application in the belief that he would be entitled to remain in the State as the father of an Irish born child.
Why the applicant did not succeed in that objective is not clear. He makes the somewhat opaque statement in his affidavit that the IBC scheme in question "was suspended before it was concluded and I was left disadvantaged".
He admits that while he was here in July, 2002, his presence thereafter was only intermittent. He travelled to Spain in 2004 although his purpose in so doing is not explained. He also says that he travelled to England and again his reason for so doing is unexplained. He says he was returned to Ireland by the British authorities because, as he puts it, "the documentation under which I travelled was believed to be false". The applicant does not enlighten the Court further as to whether he considers that this belief was or was not well founded.
Having thus been expelled from the United Kingdom he says that he immediately returned: "On my return I went to reside in the North of Ireland for a period up to May, 2005 when I returned to Dundalk". Yet again, it has not been thought fit to confide to the Court the reason for this sojourn in the United Kingdom or why it was necessary for him to remove himself from his wife and two year old infant in this jurisdiction.
The applicant says that in 2005 he tried to benefit from the IBC 05 scheme but made his application too late and did not qualify. Questioned on this by the Court at the hearing, his counsel admitted that, in any event, the applicant would probably not have complied with the continuance residence conditions of that scheme having regard to his admitted comings and goings from the State. His wife did, however, make a successful application and has resided here with her children since.
In 2007 the applicant returned to resume residence and his business in Nigeria. While he was there the Minister issued a proposal letter to deport him sent to his Dundalk address. This was obviously passed on to him because he wrote from Nigeria in April, 2008, asking that no order to deport be made. An order was not made at that point - presumably because, as a result of this information, deportation was then unnecessary.
In June, 2008, the applicant's wife gave birth to her third daughter and the Court appears to be invited to infer that the applicant's fathering of that child is explained by the averment that in 2007 "my wife and children visited me from time to time" (in Nigeria that is). No evidence of how or when those applicants travelled to Nigeria has been offered.
At any rate the Court is informed that it was the arrival of the applicant's wife's third daughter that prompted the applicant to abandon his re-established spare parts business in Nigeria and to return to Ireland because, as he says: this is "the home of my children and the proper place for me to reside with and care for them". To this end he again entered the State illegally although, once more, how and when is not disclosed.
Having thus returned, in December, 2008, Mr. and Mrs. Oladapo paid a visit to the constituency office of the respondent Minister to outline their situation and to seek permission for the applicant to remain in the State. The grounding affidavit in this proceeding could give the impression that on this occasion the applicants met the Minister and presented a case to him and received assurances. Paragraph 12 reads as follows:
"In December, 2008 together with my wife I called to the constituency...
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