Dimbo v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 November 2006
• Neutral Citation: [2006] IEHC 344
• Docket Number: [No. 151 J.R./2006]
• Court: High Court
• Date: 14 November 2006

[2006] IEHC 344

THE HIGH COURT

[No. 151 J.R./2006]

DIMBO v MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN

GEORGE DIMBO (SUING BY HIS MOTHER AND NEXT FRIEND IFEDINMA DIMBO), IFEDENMA DIMBO AND ETHELBERT DIMBO

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

BODE v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006 IEHC 341

OGUEKWE v V MIN JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006 IEHC 345

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

REFUGEE ACT 1996 S5

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

IMMIGRATION ACT 1999 S3(6)(j)

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

Ms. Justice Finlay Geoghegan

1 This judgment is supplementary to the judgments given today inDeborah Bode & Ors. v. Minister for Justice, Equality and Law Reform & Ors [2006] No. 102 J.R. ("the Bode judgment") and Oguekwe v. Minister for Justice, Equality and Law Reform [2005] No. 1271 J.R. ("the Oguekwe judgment"). These proceedings are one of the four sets of proceedings heard contemporaneously with the Bode proceedings and considered in the Bode judgment.

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

3 The second and third named applicants made applications under the IBC/05 Scheme which were refused on 16th August, 2005 by reason of their failure to establish continuous residency in the State since the birth of the first named applicant.

4 The reliefs sought by the applicants include orders ofcertiorari of the decisions of the 16th August, 2006, to refuse their IBC/05 applications. Whilst there are significant factual differences between the applicants in the Bode proceedings and those in these proceedings, insofar as the analysis and conclusions in relation to the alleged breach of the citizen child' s rights under Article 40.3. of the Constitution are concerned, there is no substantive difference between the position of the first named applicant herein as a citizen child and his mother and father as IBC/05 applicants from those of the citizen child and his father in the Bode proceeding, such as to distinguish them in anyway from the conclusions I reached in the Bode judgment in relation to the breach of the citizen child' s rights under Article 40.3 of the Constitution.

5 In the Bode judgment, the conclusion in the analysis relating to Article 8 of the European Convention on Human Rights (“the Convention”), that the citizen child had a private life in the State which demanded respect from the respondent, was based in part on the fact that the citizen child had lived in the State since birth.

6 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 respondent. It is clear that he actively participated in his school and school related activities, in which relationships had been formed in this period.

7 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.

8 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 respondent dated 16th August, 2005 in respect of the second and third named applicants as sought at paragraph 4(c) of the statement of grounds. Nevertheless, counsel for the respondent submits, that by reason of untruths stated by the second named applicant in relation to her period of residency in this country, particularly in the first affidavit sworn in these proceedings, that those reliefs should be refused.

9 The granting of reliefs by way of judicial review is a matter of discretion. Even where the illegality of a decision is determined it does not follow that the court is bound to grant an order ofcertiorari. There may be exceptional circumstances in which the court will refuse to exercise its discretion in favour of granting such relief.

10 The swearing by an applicant of a false affidavit is undoubtedly potentially such an exceptional circumstance. It is an extremely serious matter and one which might well disentitle an applicant to a relief to which he or she might otherwise be entitled. However, I have decided on the facts herein that I should not exercise my discretion to refuse to all three applicants the relief sought, namely the order ofcertiorari quashing the decisions of the respondent dated 16th August, 2005 in respect of the second and third named applicants.

11 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 respondent 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 respondent' s obligations under s. 3 of the European Convention on Human Rights Act of2003, 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.

12 In addition to the relief sought in respect of the decision under IBC/05, the applicants seek orders ofcertiorari quashing two decisions made on behalf of the respondent on 1st February, 2006 to affirm deportation orders made in respect of the second and third named applicants. Those deportation orders were made on 28th June, 2004. The statement of grounds also seeks an order of certiorari of those deportation orders; however this was not pursued as part of the oral hearing. There is an obvious difficulty in relation to the time which has elapsed between the date upon which those orders are deemed to have been served and the issue of the notice of motion seeking leave herein in February, 2006.

13 The immigration history of both Mrs. Dimbo and Mr. Dimbo in the State is lengthy and not all of it relevant to the issues which the court has to consider on this aspect of the application. In summary, Mrs. Dimbo had first come to the State in 1995 on a student visa. She was a student at University College Cork. Her son, George, was born in the State on 6th May, 1996. On 29th September, 1997 she was granted leave to remain on the basis of her citizen child. She and her child left the State in 1998 and returned to Nigeria.

14 She appears to have returned to the State with her son at the end of 2002, and sought to have her earlier granted residency extended. This was refused.

15 Mr. Dimbo is stated to have visited the State while his wife was a student. He then came on a visitor' s visa in early 2003. Mr. and Mrs. Dimbo and their son lived in the State from that date until January, 2004. Mrs. Dimbo has now lately admitted that they left the State in January, 2004. They subsequently returned to the State with their son in February, 2005.

16 On their return in 2002/2003, applications were made to renew Mrs. Dimbo' s residency based on their citizen child and Mr. Dimbo made an application for residency based on the citizen child at that time. These were not determined and a notice of intention to deport served in August, 2003. Representations seeking leave to remain were made and subsequently deportation orders were made in June, 2004, after the applicants had left the State.

17 Mrs. Dimbo maintains that at all times they were acting in the best interests of their son. She states they believe that it is in his interests that he grows up in Ireland. She asserts that they were driven by economic necessity to return to Nigeria.

18 In the summer of 2005 Mr. and Mrs. Dimbo also applied for asylum. They state they did this to obtain the relevant benefits. Nothing turns on this in relation to the decision now under consideration, save that it explains to some extent how it came about.

19 Following the refusal of their asylum application by the Refugee Applications Commissioner, their solicitor confirmed to the Department that they were not intending to appeal to the Refugee Appeals Tribunal. There then issued a number of letters of which the relevant one is of 17th October, 2005. In this letter it was indicated that the 2004 deportation order remained in place and that the respondent was then of the view that it should be enforced, but that in advance of giving an instruction to that effect, he was giving a final opportunity to submit written representations as to why the...