Dimbo -v- Minister for Justice Equality and Law Reform, [2008] IESC 26 (2008)

Docket Number:484/06
Party Name:Dimbo, Minister for Justice Equality and Law Reform
Judge:Denham J.
 
FREE EXCERPT

THE SUPREME COURT

[S.C. No:484 /2006]

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

Between/

George Dimbo (suing by his mother and next friend

Ifedinma Dimbo), Ifedinma Dimbo and Ethelbert Dimbo

Applicants/Respondents

and

The Minister for Justice, Equality and Law Reform

Respondent/Appellant

Judgment delivered the 1st day of May, 2008 by Denham J.

1.

Two Issues

There are two issues before the Court in this case. First, there is an appeal from the determination of the High Court to quash the decision of the Minster under the Irish Born Child Scheme 2005 (IBC 05 Scheme). Secondly, there is an appeal from the judgment of the High Court quashing the decision of the Minister to make a deportation order under s.3 of the Immigration Act, 1999, as amended.

2. First Issue

The first issue in this case is the decision of a Minister of the Government, made in an administrative scheme, established as an exercise of executive power, to deal with a unique group of foreign nationals. It is submitted on the one hand, that, inter alia, in this scheme the Constitutional and Convention rights of applicants were required to be considered in accordance with law. On the other hand, it was submitted that neither Constitutional nor Convention rights arose to be considered. Thus the nature of the scheme is at the core of the appeal, and, with it, the nature of any judicial review. Also, at the kernel of the matter is the fact that the position of a foreign national, who failed in an application under the scheme, remains the same as it was prior to the application, Constitutional and Convention rights remaining yet to be considered. The central issue is the refusal by the Minister of the second and third named applicant's application under the IBC 05 Scheme. In this, and the related judgments, the term 'foreign national' means a national other than an Irish citizen.

3. Eight Cases

The Minister for Justice, Equality and Law Reform, the respondent/appellant, hereinafter referred to as 'the Minister', has appealed from the judgments of the High Court (Finlay Geoghegan J.) in seven cases where the High Court quashed the decision of the Minister to refuse applications for permission to remain in the State to foreign national parents of Irish born children under a scheme which he had introduced. In an eighth case the Minister is appealing against the order for costs made in the High Court. No submissions have yet been heard on this latter case. In two cases, this being one of them, the High Court also quashed the decision of the Minister to make a deportation order, under s.3 of the Immigration Act, 1999, as amended, which the Minister has also appealed, and which is the second issue in this judgment.

4. These related cases are:

(i) Bode v. The Minister, Appeal No. 485/2006

(ii) Oguekwe v. The Minister, Appeal No. 489/2006

(iii) Dimbo v. The Minister, Appeal No. 484/2006

(iv) Fares v. The Minister, Appeal No. 483/2006

(v) Oviawe v. The Minister, Appeal No. 480/2006

(vi) Duman v. The Minister, Appeal No. 482/2006

(vii) Adio v. The Minister, Appeal No. 481/2006

(viii) Edet v. The Minister, Appeal No. 005/2007

The Minister was represented in all the cases by the same counsel. The same affidavit of Maura Hynes, a Principal Officer in the Department of Justice, Equality and Law Reform, was filed in all cases on behalf of the Minister. Similar written submissions were filed in all cases.

5. Judgment on the appeals in Bode, Fares, Oviawe, Duman and Adio were delivered by this Court on the 20th December, 2007. The general facts and law relating to this first issue in all eight cases were set out in the Bode judgment. The particular facts, law and decision of this case are set out herein.

6. Parties

George Dimbo (suing by his mother and next friend Ifedinma Dimbo) is the first named applicant/respondent, and is referred to hereinafter as 'the first named applicant'. Ifedinma Dimbo is the second named applicant/respondent, and is referred to as 'the second named applicant' hereinafter. Ethelbert Dimbo is the third named applicant/respondent, and is referred to as 'the third named applicant' hereinafter.

7. Particular Facts

The particular matter raised on the first issue in the case relates to the requirement of continuous residence under the IBC 05 Scheme, which issue was considered also in the Bode case.

The first named applicant was born in Ireland on the 6th May, 1996 and is an Irish citizen. His mother is the second named applicant and his father is the third named applicant. The second and third named applicants are married to each other and are nationals of Nigeria.

The second and third named applicants applied under the IBC 05 Scheme. Their applications were refused on the 16th August, 2005, by reason of their failure to establish continuous residency in the State since the birth of the first named applicant. The facts are considered in detail later in the judgment.

8. High Court Proceedings

The applicants brought High Court proceedings to challenge the refusal of the Minister on the 16th August, 2006 of the applications of the second and third named applicants under the IBC 05 Scheme.

9. High Court Held

The High Court held on the 14th November, 2006, that there were significant factual differences between this case and Bode, but that there was no substantive difference in the analysis and conclusions in relation to the alleged breach of the citizen child's rights under article 40.3 of the Constitution. The learned High Court judge pointed out that in Bode the conclusion in the analysis relating to article 8 of the European Convention on Human Rights, that the citizen child has a private right in the State which demanded respect from the Minister, was based in part on the fact that the child had lived in the State since its birth. The High Court held:-

"The first named applicant herein has not lived continuously in the State since birth. In August, 2005, he was nine years old. As it appears from the facts set out later in August, 2005, he had spent approximately three and a half years in the State. Most recently he had been in the State since February, 2005. He had been attending a school in Co. Meath which he had previously attended when he had been in the State in 2003. On the evidence in these proceedings I am satisfied that the first named applicant had, by August, 2005, re-established a private life in the State which demanded respect from the [Minister]. It is clear that he actively participated in his school and school related activities, in which relationships had been formed in this period".

The High Court decision was based on the application of Constitutional and Convention rights of the Irish born child:-

"I am also satisfied, on the evidence presented, that the applicant has discharged an onus of establishing that the refusal of his parent's application under IBC/05 without a consideration of his rights for those reasons set out in the Bode judgment were in breach of Article 8 of the Convention.

Accordingly, prima facie by reason of the conclusions reached in the Bode judgment, the applicants herein are entitled to orders of certiorari quashing the decisions of the [Minister] dated 16th August, 2005 in respect of the second and third named applicants as sought at paragraph 4(c) of the statement of grounds."

The High Court referred to the untruths sworn by the second named applicant in relation to her time of residency in the State and decided not to exercise its discretion to refuse an order of certiorari on this basis. Contrary to what was sworn in affidavit, the second named applicant admitted that they had left the State in January, 2004, returning with the first named applicant in February, 2005. The High Court held:-

"My reason for so deciding is that, as appears from the Bode judgment, the primary ground upon which I have determined that the decision taken by the [Minister] on those dates under the IBC/05 Scheme were invalid, is by reason of a breach of the first named applicant's rights guaranteed by Article 40.3 of the Constitution and by reason of a breach of the Minister's obligations under s. 3 of the European Convention on Human Rights Act of 2003, having regard to the State's obligations under Article 8 of the Convention in relation to the first named applicant's right to respect for his private life. Accordingly, notwithstanding the very serious breach by the second named applicant of her obligations to this court and having regard to the apology tendered, it does not appear to me that I should deprive, in particular the first named applicant, of relief in relation to a matter which is of concern to him and which I have determined by reason of a breach of his rights guaranteed by Article 40.3 of the Constitution and Article 8 of the Convention."

10. Appeal

The Minister has appealed against the judgment and orders of the High Court.

11. Decision on the IBC 05 Scheme decision

I would allow the appeal of the Minister on this issue. My general reasons are set out in the Bode judgment. The particular facts of this case are as follows.

The second named applicant came to the State in 1995 on a student visa and she attended University College Cork. Her son, the first named applicant, was born on the 6th May, 1996. On the 29th September, 1997, she was granted leave to remain in the State on the basis of her citizen child. She and the first named applicant left the State and returned to Nigeria in 1998. She appears to have returned to the State with the child in 2002 and sought to have her earlier residency extended. This was refused.

The third named applicant visited the State while his wife was a student. He then came on a visitor's visa in early 2003. Thereafter the three applicants lived in the State until January, 2004. The second named applicant admitted that they left the State in January, 2004. They returned in February, 2005.

On their return in 2002 and 2003 applications were made to renew the second named applicant's right...

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