E (D O) (A Minor) (Nigeria) v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kevin Cross |
| Judgment Date | 01 March 2012 |
| Neutral Citation | [2012] IEHC 100 |
| Court | High Court |
| Date | 01 March 2012 |
[2012] IEHC 100
THE HIGH COURT
BETWEEN
AND
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
D v UNITED KINGDOM 1997 24 EHRR 423 2 BHRC 273 1998 42 BMLR 149 1997 ECHR 25
ODULANA v MIN FOR JUSTICE UNREP CLARK 25.6.2009 (EX TEMPORE)
H (CU) & ORS v MIN FOR JUSTICE UNREP COOKE 10.3.2011 2011 IEHC 93
IMMIGRATION ACT 1999 S3
N v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017 2005 UKHL 31
REFUGEE ACT 1996 S5
IMMIGRATION LAW
Deportation
Judicial review - Certiorari - Substantial grounds - Minor applicant - Medical treatment - Sickle cell anaemia - Whether respondent conducted adequate inquiry as to whether deportation would breach applicant's rights - Whether risk of death - Whether inferior medical treatment in home state constituted ground for preventing deportation - Whether exceptional circumstances - Whether respondent considered medical report - Whether medical report actually a plea against deportation - Whether any deficiency in decision - D v United Kingdom (App No 32024/65) [1997] ECHR 25 approved - CUH (a minor) v Minister for Justice [2011] IEHC 93 (Unrep, Cooke J, 10/3/2011) distinguished - European Convention on Human Rights 1950, art 3 - Relief refused (2011/637JR - Cross J - 1/3/2012) [2012] IEHC 100
E(DO) v Minister for Justice
Facts: The applicant sought to quash by way of certiorari a deportation order made. The applicant was a minor child of Nigerian parents born in the State and suffered from sickle cell anaemia. The applicant contended that the respondent failed to conduct an adequate inquiry as to whether the deportation of the applicant would be in breach of Article 3 ECHR.
Held by Cross J. that the applicant had not made out substantial grounds. The Minister had given full consideration to the medical report. There was no deficiency in the consideration of Article 3 ECHR.
1. This is an application for leave to take up and quash by way of certiorari a deportation order made by the respondent on or about the 1 st July, 2012, and received by the applicant on the 7 th July, 2011. In order to succeed in this application the applicant must show there are "substantial grounds".
2. The applicant is a minor child of Nigerian parents and was born in this State on the 26 th March, 2009. The applicant suffers from sickle cell anaemia. It is the contention of the applicant that the respondent failed to conduct an adequate inquiry as to whether the deportation of the applicant would amount to a breach of Article 3 of the European Convention on Human Rights and in particular failed to properly consider whether deporting the applicant to Nigeria would expose the applicant to a risk of death and further, in particular, failed in his determination to consider a medical report/letter from Dr. Corrina McMahon, Consultant Paediatric Haematologist dated the 9 th September, 2009. In the said letter, Dr. McMahon stated:-
"I would therefore urge you to consider this family's application for residency sympathetically as if this child is returned to Africa he would probably die."
3. The applicant submits that whereas a further medical report from the said Dr. McMahon dated the 7 th May, 2010, was discussed and considered by the respondent that the failure to consider the earlier report amounts to failure to properly engage with Article 3 issues.
4. The respondent submits that there was a full analysis of the applicant's claim that the earlier medial report was superseded by the subsequent one, that in any event the respondent clearly did consider the submission that if returned to Nigeria that the applicant would "probably die" and further that in any event even if the respondent is at fault for this failure to consider, he has not demonstrated substantial or any grounds to take the applicant within the category of "exceptional circumstances" recognised in the leading case of D. v. United Kingdom 30240 96 [1997] ECHR 25.
5. Counsel on behalf of the applicant Mr. Stephen Dixon BL and counsel on behalf of the respondent Ms. Sinead McGrath BL are both to be congratulated on the succinct and economical yet thorough manner in which they argued this troubling case.
6. The general Convention law is unequivocal in holding that superior medical treatment the deporting country cannot be a ground for preventing the expulsion of a foreign national back to his home state. The case of D. v. the United Kingdom (above) established that it is only where exceptional circumstances exist that a state is required to permit an individual to remain in its territory for the purposes of obtaining medical treatment. This statement of the law was accepted by both parties.
7. In O.D. Odulana and F.A, Odulana (a minor suing by her mother and next friend O.D. Odulana v. The Minister for Justice, Equality and Law Reform (Unreported, High Court, Clark J. 25 th June, 2009) stated:-
"The law is, that unless a case is exceptional as in D. where the applicant was dying and it was deemed to be inhuman to return him to a country where he could not be guaranteed a hospital bed for his last days, the Minister is entitled to sign deportation orders relating to failed asylum seekers even if they are receiving medical treatment here, which either is not available at all or is unavailable in their country of origin."
8. The applicant relied upon the decision of Cooke J. in C.U.H. and J.H., J.N.H and E. and J.E.H. (minors suing by their mother and next friend C.U.H.) v MJELR [2011] I.E.H.C. 93 (Unreported, High Court, 10 th March, 2011) when he examined the failure of the Minister to consider a letter from a medical doctor at Galway University Hospital which stated:-
"Was she to be expelled from Ireland and forced to discontinue her comprehensive care and treatment regime her condition would certainly deteriorate and she would be at risk of death. I have grave concerns that, Covenant will not receive the complex treatment she requires, in a public hospital in Nigeria. Without appropriate care her prognosis is poor with a reduced life expectancy."
Cooke J. concluded:-
"It is...
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