D.O.A. (Nigeria) v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 29 April 2019 |
| Neutral Citation | [2019] IEHC 264 |
| Docket Number | [2018 No. 926 J.R.] |
| Court | High Court |
| Date | 29 April 2019 |
AND
[2019] IEHC 264
[2018 No. 926 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Deportation – Judicial review – Proportionality – Applicants seeking certiorari of a deportation order – Whether there was a lack of proportionality analysis
Facts: The respondent, the Minister for Justice and Equality, made a deportation order against the first applicant on 14th September, 2018. The applicants applied to the High Court seeking certiorari of that order on the following grounds: 1) the allegation that the Minister erred in viewing the ECHR as the primary source of fundamental rights protection; 2) the alleged failure to consider or evaluate the constitutional rights of the applicants; 3) the alleged failure to consider the family rights of the applicants; 4) the alleged disproportionality and/or Zambrano issue; 5) the alleged failure to provide reasons that the applicants’ humanitarian considerations were not of sufficient weight; 6) the alleged failure to correctly balance the rights of the applicants; 7) the alleged disproportionality; 8) the alleged failure to balance the rights of the applicants; 9) the alleged irrational finding that there was no authority to support the proposition that an Irish citizen is entitled to reside in the State with their spouse; 10) the alleged contradiction in the decision; and 11) the lack of proportionality analysis.
Held by Humphreys J that: 1) this was not a basis for certiorari of a deportation order; 2) the legal basis for this argument had largely fallen away with the revelation that the applicant parents were not married; 3) the legal basis for much if not all of this submission had fallen away given the exposure of the parents’ misleading claim to be married; 4) the decision had not been shown to be unlawfully or unconstitutionally disproportionate and the Zambrano issue simply did not arise; 5) The notion that detailed reasons are required for the refusal of an ad misericordiam submission had itself been rejected previously (Odeh v Minister for Justice and Equality [2016] IEHC 654); 6) the basis of this argument largely fell away following the discovery that the parents’ claim to be married was untrue; 7) this point was essentially covered by ground 4; 8) this was something of a repetition of the point made under ground 4; 9) this point was irrelevant as the parents were not spouses; 10) this was a consideration of two alternative scenarios, which was certainly not a ground for certiorari; and 11) given that the father was an unsettled migrant, there was no requirement to conduct a detailed proportionality analysis, save in exceptional circumstances, which did not exist in this case.
Humphreys J held that the proceedings would be dismissed.
Proceedings dismissed.
If anyone still clings to the discredited theory that all a judicial review applicant needs to disclose to the court is what was before the decision-maker, a reading of the present case might possibly prove educational.
The present tangled tale goes back over two decades. The applicants are a father and mother of Nigerian origin and their two children. The mother claimed in correspondence on 4th January, 2018 that she knew the father for over twenty years, implying that they met by 1998, if not before. The mother came to the State in March, 2002, heavily pregnant, and applied for asylum immediately on arrival. She later withdrew that claim. The third-named applicant is the older child who was born in 2002 and was entitled to citizenship on birth in accordance with the (since-amended) law in force at that time.
The father says that he left Nigeria in January, 2005 and went to the U.K. for a year. The younger child, according to Mr. Michael Conlon S.C., for the applicants, was conceived in the U.K. in 2005, when the mother apparently travelled there from Ireland. Ms. Elizabeth Cogan B.L. for the respondent indicated that it was to be presumed that the mother had by that stage been given a Stamp 4 permission which would have allowed travel, although she had no definite instructions on that.
The father then unlawfully came to Ireland in January, 2006 under the assumed identity of a British citizen cousin, and obtained employment and social welfare benefits on that fraudulent basis. In February, 2005, the mother was granted permission to remain in the State under the Irish Born Child Scheme.
The younger child was born in Ireland on 7th March, 2006. As the mother had only been lawfully resident in Ireland for approximately thirteen months prior to the birth, the fourth-named applicant was not entitled on birth to be an Irish citizen. However, the younger child's birth certificate had an incorrect father's name on it, namely the real father's British citizen cousin, which was, it is to be inferred, entered for the purpose of making a fraudulent claim for an Irish passport on behalf of the younger child. It is deposed to on behalf of the respondent by Mr. Kenneth Kavanagh in his affidavit at para. 36 that ‘it appears the Fourth Named Applicant was issued with an Irish passport on the basis of false information in respect of the identity of her father’.
The mother then appears to have been admitted to Trinity College, Dublin to study a professional qualification in 2007, according to correspondence from the applicants dated 15th September, 2014. Since then she appears to have qualified and risen to a management position. On 13th November, 2010, a passport was granted to the younger child. As noted above this was apparently on the basis of a false identity having being submitted for the father. On 5th October, 2012 the mother was naturalised as an Irish citizen. Throughout the process of application to the Minister, and indeed at all stages in the proceedings up to the date of the hearing, the parents have claimed that they were married in a traditional marriage ceremony, although evasively they never provided any particulars whatsoever of this alleged marriage. When this issue came up at the hearing Mr. Conlon took instructions and then stated that this alleged traditional marriage ceremony happened in Ireland in January, 2013. He then had to concede on that basis that it was no longer being claimed that this is a legal marriage. On that bombshell, the applicants” whole Article 41 argument simply imploded while counsel was on his feet.
On 22nd May, 2014, the father sought permission to remain in the State as the parent of what were said to be two Irish citizen children. Correspondence then ensued in relation to his chequered immigration history and the incorrect details registered under the heading of father for the two children, the older one having been registered with a completely false father's name and the younger one with the name of the father's British citizen cousin. As part of this correspondence, the Minister wrote on 25th May, 2015 seeking DNA evidence and stating that the documentation provided to the Passport Office when applying for the passport for the younger child featured false and misleading information ‘ that may render such a document void’. The father then arranged for the appropriate DNA tests which he says established that he was the actual father of the children. This appears to have been accepted by the relevant State authorities. He was requested to ensure that the birth certificates were corrected and this appears to have been done. The Minister then sought some further information in support of his application, some of which was provided.
In December, 2015, the younger child's apparently falsely procured passport expired and in 2016 a new passport was applied for with the father's correct name. As Ms. Cogan puts it, there was ‘ some sort of disclosure at that point’, and, while in the absence of the file she cannot be definitive about what exactly happened, it is to be assumed that from that point onwards the Minister for Foreign Affairs and Trade was made aware of the true circumstances of the younger child's parentage. A new passport application was refused for that reason, apparently, and the younger child then applied for naturalisation as an Irish citizen.
In the meantime, the father had been charged with theft and fraud offences arising from falsely claiming social welfare. His solicitor informed the Minister by letter dated 8th June, 2017 of his next court attendance date. The Minister replied on 9th June, 2017 that the applicants should advise of the outcome. On 9th October, 2017, the Minister again requested the applicant's solicitor to do so, in default of which the application would be deemed to be withdrawn. The Minister's approach was that when that letter was not responded to within the time specified, the application was deemed to be withdrawn. Thus while the applicants” solicitor's affidavit says that the Zambrano application was refused, that in fact doesn't appear to be correct. Rather, the application appears to have been treated as withdrawn by the Minister.
In December, 2017 a notice of intention to deport the first-named applicant was issued. Also, in December, 2017 the applicant was sentenced to two years” imprisonment following his conviction for theft and fraud offences. The younger child was naturalised on 21st May, 2018, and, given the history I have mentioned above, it is to be assumed that that was on the basis of a correct understanding of the factual situation on behalf of the Minister at that point in time.
The Minister made a deportation order against the...
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