D.O.M. and Others v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 08 April 2014
• Neutral Citation: [2014] IEHC 193
• Court: High Court
• Date: 08 April 2014

[2014] IEHC 193

THE HIGH COURT

[No. 1453 J.R./2010]

M (DO) & Ors v Min for Justice

JUDICIAL REVIEW

BETWEEN

D.O.M. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND, D.M.) AND D.F.M. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND, D.M.) AND D.I.M. (A MINOR ACTING BY HIS FATHER NEXT FRIEND, D.M.) AND D.M.

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

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

IMMIGRATION ACT 1999 S3(6)

REFUGEE ACT 1996 S5

CRIMINAL JUSTICE (UNITED NATIONS CONVENTION AGAINST TORTURE) ACT 2000 S4

GUARDIANSHIP OF INFANTS ACT 1964 S6A

CONSTITUTION ART 40

I (K) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP MCDERMOTT 21.2.2014 2014 IEHC 83

E (O) & E (AH) (AN INFANT) v MIN FOR JUSTICE 2008 3 IR 760 2008/22/4761 2008 IEHC 68

Y (HL) & ORS v MIN FOR JUSTICE & AG UNREP CHARLETON 13.2.2009 2009/58/14845 2009 IEHC 96

FALVEY & IWUOMA v MIN FOR JUSTICE UNREP DUNNE 4.12.2009 2009/20/5042 2009 IEHC 528

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

E (F) (A MINOR) & ORS v MIN FOR JUSTICE UNREP MCDERMOTT 28.2.2013 2013 IEHC 93

BOULTIF v SWITZERLAND 2001 2 FLR 1228 2001 33 EHRR 1179

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

UNER v NETHERLANDS 2006 3 FCR 340 2007 45 EHRR 421

CONSTITUTION ART 41

J (MR) v MIN FOR JUSTICE UNREP MAC EOCHAIDH 22.1.2014 (EX TEMPORE)

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

OGUEKWE v MIN FOR JUSTICE 2008 3 IR 795 2008 2 ILRM 481 2008/51/10890 2008 IESC 25

Immigration and asylum - Refugee status - Residency on basis of Irish born citizen child - Permission to remain - Criminal offences - Deportation order - Separation with partner - Joint guardian - Constitutional rights of children - Right to respect for private & family life; Article 8 ECHR - Prevention of disorder and crime within the State

Facts: The applicant is a Nigerian national. He arrived in Ireland and sought refugee status. He was stopped in possession of false documents pertaining to his identity and thus his refugee status was declared manifestly unfounded. He commenced a relationship with another asylum seeker and they had a child together. They withdrew their respective applications for refugee status and applied for residency on the basis of their Irish born citizen child. The applicant was granted permission to remain for one year, conditional on remaining in compliance with Irish law in every respect during that period. Subsequently, the couple had two more children, both Irish citizens. Permission to remain continued until it was brought to the attention of the respondent authority that the applicant had been arrested by the PSNI in County Armagh for numerous driving and fraud offences. Extension of permission to remain was granted for a short time later pending inquiry into his domestic circumstances and details relating to his criminal convictions/sentences. It was ultimately decided that his permission to remain not be renewed – this decision was on the basis that he had committed a substantial number of offences outside the jurisdiction over a two year period. Under s.3 Immigration Act 1999 a deportation order was made against him. The applicant now seeks to quash the deportation order on several grounds.

Held: The judge concluded the respondent authority had adequately conducted a balancing exercise of the rights involved in accordance with the principles laid down in Oguekwe v. Minister for Justice [2008] 3 I.R. 795. The respondent considered the family circumstances of the applicant based on the information and evidence provided. The constitutional rights of the children had been fully and appropriately taken into consideration in line with the relevant principles. The judge affirmed, relying on the relevant authorities, that the decision-maker was entitled to conclude that the commission of the offences described was capable of justifying the making of a deportation order in order to prevent disorder and crime within the State. The applicants family and employment history was given extensive consideration, however, the judge recognised that certain factors relating to the rights and interests of the State can outweigh those relating to an applicants right to respect for private and family life, in accordance with the principles laid down in Boultif v. Switzerland [2001] 33 EHRR 1179. The applicant had been separated and living apart from his children for some time. He failed to supply even the most basic details in relation to which of the children suffered from autism and to what extent. It was clear that financially it would be difficult for the children to travel to Nigeria, but physical separation and difficulties of that nature arise in most deportation situations and this factor was clearly acknowledged and considered in the examination of file.

Application refused.

1 1. The fourth named applicant is a Nigerian national who arrived in the state on 30 ^th August, 1999, and applied for refugee status the following day. He stated that his wife was deceased and that he had three sons who resided in Nigeria. Very little detail was provided in respect of his relationship to, or role in, the upbringing of these children during the subsequent asylum and immigration process.

2 2. On 12 ^th September, 1999, the fourth named applicant was stopped while driving from Belfast by taxi. He had been collected at the port at Lame and was in possession of a false Dutch passport in the name of Friday Ayeni Moses, a national insurance number and various documents in the same name and others in the names of David Birdoff and Michael Aborode. In the course of his s. 11 interview he offered no sensible explanation for his possession of these documents. His application for refugee status was declared to be manifestly unfounded and it was concluded that:-

"It appears that this applicant is a commuter from the UK where he uses the name "Friday Moses". If the documents which were found on him on his way back into this State from Larne are anything to go by, he may well be using other names there also (see documents in A4 envelope opposite). He was detected on his way back into the state a mere thirteen days after first arriving in this department to claim asylum."

3 3. An appeal was filed in relation to this determination on 17 ^th November, 2000, with legal assistance. In the meantime the applicant commenced a relationship with another asylum seeker, C.B. The applicant and C.B. had a son, the first named applicant, D.O.M., born in the state on 17 ^th February, 2001. They withdrew their respective applications for refugee status on 20 ^th March, 2001, and applied for residency in the state on the basis of their Irish born citizen child. On 16 ^th January, 2002, the fourth named applicant was granted permission to remain in the state for a period of one year. The letter stated:-

"This permission is being granted on the basis that you are living in the same household as the Irish child and discharging the role of parent to that child. Your permission to remain will be reviewed at the end of this period in the light of all relevant circumstances and is conditional on you remaining in compliance with Irish law in every respect during that period."

The couple had two further children, the second named applicant, D.F.M., born 26 ^th April, 2005 and the third named applicant, D.I.M., born 9 ^th November, 2006. All three are Irish citizens.

4 4. The permission was continued from time to time until in or around September, 2008 when the respondent became aware that the applicant had been arrested by the Police Service of Northern Ireland (PSNI) in Market Hill. County Armagh on 31 ^st July for a series of alleged driving and fraud offences. He was remanded in custody on that date on charges of driving without insurance, possession of an article for use for fraud, fraudulent use of an insurance certificate, obstructing police, possession of a false instrument with intent and obtaining property by deception together with a number of charges concerning unlawful charitable collection. These offences had been committed over a period from l ^st May, 2006 to 31 ^st July, 2008. The fourth named applicant pleaded guilty to these offences on 23 ^rd December, 2008, when Armagh Magistrates Court imposed a sentence of six months imprisonment suspended for a period of three years and banned the applicant from driving for three years. The applicant was thereafter released from custody and re-entered the state. His permission to remain in the state was due for renewal on 26 ^th January, 2009, but at that stage his file was under investigation by the respondent in the light of the information that had been received in respect of his arrest and prosecution.

5 5. On 5 ^th March. 2009. the applicant wrote to the Garda National Immigration Bureau (GNIB) seeking a renewal of his permission to remain in the state. On the same date a request was made to the GNIB by the respondent seeking clarification regarding the applicant's residency and whereabouts in the state, his domestic circumstances and details of his convictions and sentences in this or any other jurisdiction. A request was made that the inquiry be treated with urgency. The request was repeated on 24 ^th June.

6 6. On 11 ^th December, 2009, the applicant's solicitors wrote to the respondent requesting a decision concerning an extension of his permission to remain and threatening to take judicial review proceedings. The respondent replied by letter of 5 ^th December, stating that the matter was under...