O (D) and Others v A G and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Ryan
• Judgment Date: 15 December 2010
• Neutral Citation: [2010] IEHC 521
• Court: High Court
• Date: 15 December 2010

[2010] IEHC 521

THE HIGH COURT

[No. 764 J.R./2009]

O (D) & Ors v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

D. O., T. O. AND D. O. (THREE MINORS SUING BY THEIR MOTHER AND NEXT FRIEND G. O.), G. O. AND S. O. [GHANA]

APPLICANTS

AND

MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

AND

THE ATTORNEY GENERAL AND THE HUMAN RIGHTS COMMISSION

NOTICE PARTIES

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

G v DPP & JUDGE KIRBY 1994 1 IR 374 1994/3/724

DADA v MIN FOR JUSTICE UNREP O'NEILL 3.5.2006 2006/14/2921 2006 IEHC 140

A (M) v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

O (S) & ORS v MIN FOR JUSTICE UNREP COOKE 1.10.2010 2010/40/10089 2010 IEHC 343

ALIENS ACT 1935 S5(1)(F)

ALIENS ACT 1935 S5(1)(H)

HEANEY & MCGUINNESS v IRELAND & AG 1994 3 IR 593 1994 2 ILRM 420 1994/10/3029B

ALIENS ACT 1935 S5

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

IMMIGRATION ACT 1999 S3

B (M) & ORS v MIN FOR JUSTICE UNREP CLARK 30.7.2010 2010/23/5602 2010 IEHC 320

B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

MCCANN v UNITED KINGDOM 2008 47 EHRR 40 2008 HLR 40 2008 2 FLR 899 2009 1 FCR 390

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

IMMIGRATION LAW

Deportation

Change in circumstances - Interference with family rights - Right of residency of applicant's wife - Irish citizen child - Maintenance and control of State's borders - Proportionality - Whether decision to interfere with family rights in accordance with law, in pursuit of pressing need and proportionate to legitimate aim - Whether error of fact - Whether any less restrictive process available - Whether Immigration Act 1999 incompatible with ECHR - G v DPP [1994] 1 IR 374; D(AO) v Minister for Justice, Equality and Law Reform [2006] IEHC 140, (Unrep, Ó Néill J, 3/5/2006); A(M) v Minister for Justice (Unrep, HC, Cooke J, 17/12/2009); Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701; O(S) v Minister for Justice [2010] IEHC 343, (Unrep, Cooke J, 1/10/2010); Heaney v Ireland [1994] 3 IR 593; (O)A v Minister for Justice [2003] 1 IR 1; B(M) v Minister for Justice [2010] IEHC 320, (Unrep, Clark J, 30/7/2010); B(J) (A minor) v Minister for Justice [2010] IEHC 296, (Unrep, Cooke J, 14/7/2010) considered - McCann v United Kingdom (2008) 47 EHRR 40 distinguished - Immigration Act 1999 (No 22), s 3(11) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Aliens Act 1935 (No 14), ss 5(1)(f) and (h) - European Convention on Human Rights, art 8 - Leave refused (2009/764JR - Ryan J - 15/12/2010) [2010] IEHC 521

O(D) v Minister for Justice and Law Reform

1 JUDGMENT of Mr. Justice Ryan delivered the 15th December 2010

2 1. This is an application for leave to bring judicial review proceedings to challenge the Minister's refusal to revoke a deportation order made in respect of the fifth applicant, who is the husband of the fourth applicant, the stepfather of the first applicant and the father of the second and third applicants. Mr. Michael McNamara B.L. appeared for the applicants. The respondent was put on notice of the leave application and was represented by Ms. Fiona O'Sullivan B.L.

Background.

3 2. The fifth applicant, a 32 year old national of Ghana, arrived in the State in October 2003. His application for asylum was rejected. In September, 2004, he made an application to the Minister for leave to remain in the State on humanitarian grounds. This was unsuccessful and, on the 19 ^th November, 2004, the Minister signed a deportation order in respect of him. In January, 2007 he married the fourth applicant, a national of Nigeria who has permission remain in the State under the IBC/05 scheme by virtue of her Irish citizen child (the first applicant herein) who was born in the State in April, 2003. The fourth applicant gave birth to the second applicant in February, 2007 and the third applicant in August, 2008 (the latter is an Irish citizen).

4 3. Subsequently, the fifth applicant's solicitor applied to the Minister to have the deportation order revoked pursuant to s. 3(11) of the Immigration Act 1999 on the basis of a significant change in circumstances. The representations made to the Minister included the following:-

5 · The fifth applicant married the fourth applicant in January, 2007.

6 · The fourth applicant has the right to reside in the State by virtue of her parentage of the first applicant, an Irish citizen.

7 · The couple live together with the first applicant child and their two marital children, the second and third applicants, who were born in February, 2007 and July, 2008 respectively. The third applicant is an Irish citizen.

8 · The fifth applicant is actively involved in the rearing and upbringing of the third applicant, is the parent of the second applicant and is in loco parentis to the first applicant.

9 · The fifth applicant ought to be granted permission to remain so that he may continue with certainty and security of residency within the family home as husband to his wife and father to his children.

10 · The fifth applicant is anxious to engage in employment and relieve his wife of the heavy burden of working while trying to nurse an infant and raise two other children. He is very confident of obtaining employment and being in a position to support his family.

11 The application was supported by various documents, including a copy of the couple's marriage certificate, the second applicant's birth certificate and the third applicant's passport.

12 4. In a decision communicated by letter dated the 3 ^rd July, 2009, the Minister declined to revoke the deportation order. A file analysis prepared by an official in the Minister's department sets out the reasons for the decision. The document summarises the background to the decision and the submissions made on the fifth applicant's behalf to the Minister. It then considers the fifth applicant's case in relation to Article 8 of the European Convention on Human Rights. It concludes that a decision to deport the fifth applicant would not engage his private rights. On the matter of the applicants' family rights, it is noted that the fifth applicant married the fourth applicant in 2007 and that they have had two children together, one of whom is an Irish citizen. It is also noted that the fifth applicant claims to be in loco parentis to the first applicant, also an Irish citizen. By way of conclusion, it is acknowledged that a decision to affirm the fifth applicant's deportation would interfere with the applicants' family rights. However, such interference is in accordance with the law, pursues a pressing need and legitimate aim - viz. the maintenance and control of the State's borders and the operation of a regulated system for the control, processing and monitoring of non-nationals - and is necessary in a democratic society, is in pursuit of a pressing social need and is proportionate to the legitimate aim being pursued.

13 5. Under the heading of proportionality it is noted that at the time of his marriage the fifth applicant had no legal entitlement to remain in the State and the fourth applicant would have been fully aware of the fifth applicant's precarious immigration status. As regards the applicant children, the document states that all three are entitled to both Nigerian and Ghanaian citizenship under the respective constitutions of those countries. It is further stated that the children are of an adaptable age and that the Minister is not obliged to respect the choice of residence of the fifth applicant. The report then considers the constitutional rights of the Irish citizen children, namely the first and third applicants, while noting that these rights must be weighed against the rights of the State.

14 6. By way of general conclusion, the report provides: "there is nothing to suggest that there are any insurmountable obstacles to the family being able to establish family life in Nigeria or Ghana … if the Minister affirms the deportation order in respect of [the fifth applicant], there is no less restrictive process available which would achieve the legitimate aim of the State to maintain control of its own borders and operate a regulated system for control, processing and monitoring of non-national persons in the State. This therefore exists as a substantial reason associated with the common good which requires that the deportation order made in respect of [the fifth applicant] be affirmed."

The Applicable Burden and the Scope for Review.

15 7. Section 5 of the Illegal Immigrants (Trafficking) Act 2000 does not apply to these proceedings. Thus, the burden on the applicants is merely to make a case that is stateable or arguable as per G v. Director of Public Prosecutions [1994] 1 I.R. 374. This notwithstanding, the role of this Court in reviewing...