Dimbo v Minister for Justice

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 01 May 2008
• Neutral Citation: [2008] IESC 26
• Court: Supreme Court
• Date: 01 May 2008

Dimbo v Min for Justice

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

[2008] IESC 26

Murray C.J.

Denham J.

Fennelly J.

Kearns J.

Finnegan J.

[S.C. No:484 /2006]

THE SUPREME COURT

Abstract:

Immigration - Asylum - Deportation - Judicial review - Administrative scheme - Irish born child - Right to remain - Constitutional and conventional rights - Immigration Act, 1999 - Illegal Immigrants (Trafficking) Act, 2000 - Whether the Minister erred in refusing the applicants’ application for leave to remain and in making a deportation order.

Facts: The first named applicant was an Irish born citizen and the child of the second and third named applicants, who were nationals of Nigeria. The respondent appealed from the determination of the High Court quashing the decision of the Minister refusing the applicants permission to remain in the State under the Irish Born Child Scheme 2005 (IBC 05 Scheme). The appellant also appealed from the judgment of the High Court quashing the decision of the Minister making a deportation order under section 3 of the Immigration Act, 1999, as amended in relation to the applicants. The applicants’ application for permission to remain had been refused on the ground that they failed to meet the requirement of continuous residency in the State since the birth of the first named applicant. That fact was not contested by the applicants. The applicants had challenged the decision to deport them on the grounds that the Minister failed to consider their convention rights and failed to give due consideration to the first named applicant’s rights as a citizen and failed to identify a grave and substantial reason favouring deportation.

Held by the Supreme Court (Denham J.: Murray C.J. and Fennelly J. concurring) in allowing the appeal in relation to the issue of the Scheme and dismissing the appeal relating to the deportation issue:

1. That the terms of the IBC 05 Scheme were established clearly by the Minister and the scheme included a requirement of continuous residency in the State with the child. The applicants did not meet that requirement and therefore the Minister acted within the terms of the scheme in refusing their application. The Scheme was an administrative one established by the Minister exercising executive power and it was not intended, within the ambit of the scheme, that the constitutional or convention rights of applicants would be considered.

2. That when deciding to make a deportation order consideration should be fact specific to the individual child, his or her age, current educational progress, development and opportunities and his/her attachment to the community. Detailed submissions had been made to the Minister in this case regarding the first named applicant’s schooling, yet the decision of the Minister made no reference to the factual matters relevant to the first named applicant’s rights, including his right to be educated and reared in Ireland. Furthermore, the Minister failed to identify a substantial reason for the decision to make a deportation order in this case. Whilst the IBC 05 Scheme was not a factor in the deportation process, the constitutional and conventional rights of the parents and their child were factors to be considered.

Reporter: L.O’S.

IMMIGRATION ACT 1999 S3

BODE v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 62

OGUEKWE v MIN JUSTICE UNREP SUPREME 1.5.2008 2008 IESC 25

FARES v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 65

OVIAWE v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 66

DUMAN v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 64

ADIO v MIN JUSTICE UNREP SUPREME 20.12.2007 2007 IESC 63

EDET v MIN JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006/21/4485 2006 IEHC 347

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT S3

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

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

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S10

RYAN v AG 1965 IR 294

CONSTITUTION ART 41

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT S3(1)

CIRPACI (ORSE MCCORMACK) v MIN JUSTICE 2005 2 ILRM 547 2005/10/2112

R (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840

ABDULAZIZ, CABALES & BALKANDALI v UK 1985 7 EHRR 471

POKU v UNTED KINGDOM 1996 22 EHRR CD 94

BEREHAB v THE NETHERLANDS 1988 11 EHRR 322

BOUJLIFA v FRANCE 2000 30 EHRR 419

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

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

2 Judgment delivered by Denham J. [nem diss]

1. Two Issues

3 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

4 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

5 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 toforeign 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.

6 4. These related cases are:

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

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

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

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

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

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

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

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

15 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.

16 5. Judgment on the appeals in Bode, Fares, Oviawe, Duman and Adio were delivered by this Court on the 20 ^th 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

17 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 referredto 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

18 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.

19 The first named applicant was born in Ireland on the 6 ^th 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.

20 The second and third named applicants applied under the IBC 05 Scheme. Their applications were refused on the 16 ^th 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

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

9. High Court Held

22 The High Court held on the 14 ^th November, 2006, that...