Dos Santos v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IECA 210
• Docket Number: [C.A. No. 56 of 2015]
• Court: Court of Appeal (Ireland)
• Date: 30 July 2015

Dos Santos & Ors v Min for Justice & Ors

IN THE MATTER OF THE REFUGEE ACT, 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED) AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000

BETWEEN/

ODENIS RODRIGUES DOS SANTOS, ANTONIA ALEXANDRE DE MORAIS, ITALO ALEXANDRE DUARTE, CAMILA ALEXANDRE DUARTE (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), KARINE ALEXANDRE RODRIGUES (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), GIOVANNA ALEXANDRE RODRIGUES (A MINOR SUING BY HER FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS), JOAO ALEXANDRE RODRIGUES (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, ODENIS RODRIGUES DOS SANTOS)

APPLICANTS/APPELLANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2015] IECA 210

Ryan P.

Finlay Geoghegan J.

Peart J.

Appeal No.: 56/2015

THE COURT OF APPEAL

Immigration – Deportation – Public interest – Appellants seeking to appeal against deportation orders – Whether a personal right to a private life in the State was breached

Facts: The appellants are all Brazilian nationals and a family unit consisting of a father, mother, and five children, who arrived in Ireland at various dates between 2002 and 2007. The father, Mr Dos Santos, had arrived in Ireland lawfully on a work permit in 2002. It expired in 2003. Nevertheless he remained in the State, continued initially to work and paid all appropriate taxes without the relevant immigration permission. In 2007 his unlawful status was discovered and he was subsequently refused permission to remain in the State. A deportation order was made in March, 2012. In the course of his application to remain in Ireland, the remaining members of the family came to the attention of the Irish National Immigration Service (INIS). In August 2011, the respondent, the Minister for Justice and Equality, indicated that he was proposing to consider the deportation of each of the applicants. An examination of file in relation to the father was concluded in February, 2012 and the official recommended that the Minister make a deportation order. A separate examination of file was concluded in respect of the mother and five children in February, 2012 which also recommended deportation of all. In March, 2012, the Minister made deportation orders in respect of all members of the family. Leave to apply for judicial review was granted by the High Court in May, 2013. The post leave grounds of challenge and the three grounds of appeal pursued on behalf of the children were rejected by the trial judge: 1) The alleged breach of a personal right to a private life in the State under Article 40.3 of the Constitution; 2) The alleged obligation of the Minister pursuant to s. 3 of the Immigration Act 1999 when construed in accordance with Article 3(1) of the Convention on the Rights of the Child to consider and treat as a primary consideration the best interests of the child when making a decision whether or not to deport the child; 3) The approach to and determination as to whether Article 8 of the Convention on Human Rights was engaged in relation to a potential interference with the child”s right to private life. By judgment in November, 2014, and by a January, 2015 order made pursuant thereto, the High Court dismissed the appellants” application by way of judicial review for orders of certiorari quashing the decisions of the respondent Minister making deportation orders in respect of the applicants. The trial judge certified that his decision to refuse the reliefs sought by the applicants involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal. The appellants appealed to the Court of Appeal against the judgment and order of the High Court.

Held by Finlay Geoghegan J that the trial judge was correct in the conclusion reached from a consideration of relevant authorities of the Supreme Court that he could not be satisfied that the applicant children not being citizens of the State have a personal right within the meaning of Article 40.3 to remain in the State and/or participate in community life in the State. Finlay Geoghegan J held that the trial judge was correct in determining that s. 3(6)(a) of the 1999 Act cannot be interpreted as requiring the Minister, when he ascertains the age of the person and identifies that the person is a child, to treat as a primary consideration the best interests of the child or to expressly decide whether deportation is consistent with the child”s best interests. For the reasons set out in her judgment in CI and ors v Minister for Justice and Equality and ors, Finlay Geoghegan J concluded that the trial judge was correct in the conclusion he reached in upholding the lawfulness of the approach in the examination of file conducted on behalf of the Minister in relation to the State”s obligations pursuant to Article 8 ECHR and the Minister”s consequent obligation pursuant to s.3(1) of the European Convention on Human Rights Act 2003, and further that the trial judge was correct in his conclusion that on the facts before the Minister the decision that the alleged interference with the right to private life under Article 8 did not have consequences of such gravity to potentially engage its operation was reasonable.

Finlay Geoghegan J held that the trial judge was correct in dismissing the applicants” claim for Certiorari of the decisions of the Minister to make deportation orders in respect of the applicants. Accordingly she dismissed the appeal.

Appeal dismissed.

1 1. The appellants all members of a Brazilian family who arrived in Ireland at various dates between 2002 and 2007. They appeal against the judgment of the High Court (McDermott J.) of the 19 ^th November, 2014, and an order of the 21 ^st January, 2015, made pursuant thereto. The High Court dismissed the appellants' application by way of judicial review for orders of certiorari quashing the decisions of the respondent Minister making deportation orders in respect of the applicants. The trial judge by order of the same date certified that his decision to refuse the reliefs sought by the applicants involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal. The trial judge identified and set out five points of law which have focused and informed the appeal.

2 2. The appeal was heard with the appeal in C.I. and Others v. Minister for Justice and Equality and Others in which judgment is also being delivered today. The appeal raises similar issues in relation to Article 8 of the European Convention on Human Rights to that raised in the appeal of C.I. albeit in a context where the trial judge did not consider the Minister to be in error in the approach taken in addressing the question recommended by Lord Bingham of Cornhill, in his majority opinion Regina (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. This appeal raises additional issues which require determination.

Background Facts

3 3. The applicants are all Brazilian nationals and a family unit consisting of a father, mother, and five children. At the time of the hearing of the appeal, the mother had returned to Brazil by reason of the illness of her father. The father and five children remain in Ireland. The father had arrived in Ireland lawfully on a work permit in 2002. It expired in 2003. Nevertheless he remained in the State, continued initially to work and paid all appropriate taxes without the relevant immigration permission. In 2007, he was stopped by gardaí at a routine road check in Roscommon and was requested to present his passport to an immigration officer in Roscommon. His unlawful status was discovered and he was subsequently refused permission to remain in the State. He was then sent a letter pursuant to s. 3 of the Immigration Act 1999 and after some initial difficulties in relation to receipt of letters, ultimately a solicitor took up correspondence with the Minister and made submissions under the Act of 1999. However, a deportation order was made on the 12 ^th March, 2012.

4 4. The mother arrived in Ireland in 2003, and appears to have purported to enter the State for the purpose of a holiday with her brother who was in the State on a work permit. Three of the children came into the State in February 2007, accompanied by an uncle who resided in Ireland and the two further children came into the State in either June 2006 or 2007, again accompanied by their uncle.

5 5. By 2009 the father had ceased employment and was in receipt of unemployment benefit. In the course of his application to remain in Ireland, the remaining members of the family came to the attention of the Irish National Immigration Service (INIS). Correspondence was sent by solicitors on their behalf. In August 2011, the Minister indicated that he was proposing to consider the deportation of each of the applicants. Thereafter further submissions were made by solicitors on their behalf with limited submissions made on behalf the children identifying the schools being attended and the progress being made. The applicants' solicitors sent letters in September and October 2011.

6 6. The applicants have never made an application for asylum, notwithstanding the reference to the Refugee Act in the title to the proceedings.

7 7. An examination of file in relation to the father was concluded on the 10 ^th February, 2012 and the official recommended that the Minister make a deportation order. A separate examination of file was concluded in respect of the mother and five children on the 13 ^th February, 2012 which also...