E.E.E. and Others v Minister for Justice, Equality and Law Reform

JurisdictionIreland
JudgeMS. JUSTICE CLARK
Judgment Date02 April 2009
Neutral Citation[2009] IEHC 160
CourtHigh Court
Date02 April 2009

[2009] IEHC 160

THE HIGH COURT

[No. 220 J.R./2009]
E (E E) & Ors v Min for Justice
JUDICIAL REVIEW

BETWEEN

E.E.E., Rc.E. (AN INFANT, SUING BY HER MOTHER AND NEXT FRIEND E.E.E.) AND Rp.E. (AN INFANT, SUING BY HIS MOTHER AND NEXT FRIEND E.E.E.)
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

O (A) & L (D) v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

N v SECRETARY OF STATE FOR THE HOME DEPT 2005 2 AC 296 2005 2 WLR 1124 2005 4 AER 1017

AGBONLAHOR (A MINOR) v MIN FOR JUSTICE & AG 2007 4 IR 309 2007/3/447 2007 IEHC 166

AKUJOBI (A MINOR) v MIN FOR JUSTICE 2007 3 IR 602 2007/3/555 2007 IEHC 19

NWOLE v MIN FOR JUSTICE & CMSR OF AN GARDA SIOCHANA UNREP FINLAY-GEOGHEGAN 31.10.2003 2003/42/10103

REFUGEE ACT 1996 S8

P & L & B v MIN FOR JUSTICE & AG 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

1

This is an application for an interlocutory injunction preventing the deportation of the first named applicant, pending the determination of the asylum applications of the second and third named minor applicants who are the twin son and daughter of the applicant. Mr. Paul O'Shea B.L. appeared for the applicants and Ms. Siobhán Stack B.L. appeared for the respondent. The hearing took place at the Kings Inns, Court No. 1, on the 26 th March, 2009.

2

By way of background to this application for injunctory relief, the first named applicant is a national of Nigeria. She, her husband and their infant son P., who was born in Nigeria in 2004, arrived in the State and sought asylum on the 14 th September, 2006. At the time the applicant was pregnant and gave birth in the State approximately 2 months later to a daughter J..

3

The first named applicant made an asylum application for herself and her son P.. She filled in a questionnaire and was interviewed by an officer of the ORAC on the 11 th December, 2006, shortly after the birth of J.. The first named applicant sought legal advice and decided that J. would not be included in her mother and brother's application and thereafter an entirely separate process was conducted on J.'s behalf. The first named applicant's husband, Mr. S.E., also brought a separate and distinct application for asylum.

4

The first named applicant's asserted fear of persecution derives from a fear of the political group MASSOB. The background to this fear is that she and her husband were caught up in a bloody conflict described as a crisis between MASSOB and another group called NARTO in their home town in Nigeria. This crisis is confirmed in country of origin information (COI). It was asserted that during rioting, their house was vandalised, their business was damaged and all their stock looted. Shortly afterwards the first named applicant was kidnapped with others in a random abduction by MASSOB. When it was discovered that her husband was a man of means, a huge ransom was demanded. Her husband was unable to pay the sum but through a business relationship with someone in MASSOB her abductors released her unharmed. She and her husband were warned that members of MASSOB would seek them out to extract the ransom no matter where they hid in Nigeria so they undertook to travel to Ireland and eventually made separate applications for asylum.

5

The first named applicant's claim before the ORAC was unsuccessful and a Notice of Appeal was lodged on the 26 th January, 2007 by solicitors acting on her behalf. The first named applicant indicated at that point that she did not wish for her Irish-born daughter J. to make an application for asylum. The first named applicant's appeal and that of her son P. was rejected by the RAT and she was informed on 22 nd April, 2008 that the Minister was proposing to make a deportation order in respect of her and she was informed of all the options now open to her.

6

On 9 th February, 2007, an application for asylum was made on behalf of J. claiming that it would be unsafe for her to return to Nigeria because of the problems her parents had with MASSOB. Her section 11 interview was conducted through the first named applicant on the 26 th February, 2007. J.'s entire claim was based on her parent's fear of MASSOB and nothing else. It was asserted that she would be recognised as the child her mother was expecting when the latter was abducted by MASSOB in Nigeria and would be under threat as a member of the family. At no stage did J.'s mother assert that J. was under any threat of Female Genital Mutilation (FGM) or circumcision from family members or anyone else in Nigeria.

7

Neither the first named applicant, her son P., her daughter J. nor her husband was successful at first instance or on appeal in their refugee status applications. It is stated that the husband is awaiting a date for the hearing of a judicial review of his RAT decision and that hearing is listed for the end of May this year.

8

When the first named applicant was informed that the Minister intended to make deportation orders in respect of herself and her son P., extensive representations were made to the Minister. On the 12 th May, 2008, a different firm of solicitors acting on their behalf wrote seeking leave to remain temporarily in the State pursuant to s. 3 of the Immigration Act 1999. No mention is made in those lengthy submissions that the applicant was approximately seven months pregnant with twins at the time or that she was pregnant at all. Submissions were made on the basis that the first named applicant, her husband and their two children all lived as a family unit in Ireland. The Minister was informed that the husband's judicial review application was ongoing and that J. was awaiting an appeal hearing. Many letters or personal recommendations were included together with extracts from COI dealing with violence in Nigeria, the difficulties faced by women and by children there and the Minister was reminded of the U.N. Convention on the Rights of the Child.

9

The events which occurred thereafter which are relevant to this application are that the first named applicant gave birth to twins on the 6 th August, 2008. These infants are the second and third named applicants in these proceedings. Their birth was not notified to the Minister while he was considering the leave to remain application in respect of the family unit.

10

The first named applicant's file was examined under s. 3 of the Act of 1999, s. 5 of the Refugee Act 1996 and Article 8 of the European Convention on Human Rights, and it was recommended that deportation orders be made. The position of the infants P. and J. were considered and it was noted that the first named applicant's husband was also in the State. A deportation order was made in respect of the first named applicant and P. on 30 th January, 2009, and the applicant and P. were asked to present themselves to the Garda National Immigration Bureau (GNIB) on the 17 th February, 2009.

11

Contrary to what was stated in the applicant's submissions on leave to remain, no appeal to the RAT was lodged on J.'s behalf. Her file was considered and a deportation order was made in respect of J. on the 29 th January, 2009, the day before the first named applicant and P. were notified that they were going to be deported. The twins who were born on 6 th August 2008 were not mentioned in any deportation orders in relation to the applicant and her older children P. and J. nor, it appears, was the Minister aware of their existence.

12

Pursuant to the terms of the letter dated the 30 th January, 2009, the first named applicant presented herself to the GNIB on the 15 th February, 2009 and was requested to attend again on the 27 th February, 2009 at 9.15 a.m. to facilitate her deportation from the State. No issue was raised as to the existence of the twin babies.

13

On the 16 th February, 2009, the day after she presented to the GNIB pursuant to the deportation order, the first named applicant made an application for asylum on behalf of the twins born in Ireland, who were now six months old, through her current and third firm of solicitors. The first named applicant completed a questionnaire on behalf of the twins and they were invited to attend for their s. 11 interview on the 27 th February, 2009.

14

An interim injunction restraining the deportation of the first named applicant was obtained on the 25 th February, 2009. On that day, the Court was informed that the twins would be left unaccompanied in the State if their mother, the first named applicant, were to be deported and that such deportation would in effect cause them to abandon their asylum application as their mother would not be there to speak for them at their s. 11 interview. No mention was made of the fact that their father was in the State. On that basis an ex parte interim injunction was obtained and subsequently an undertaking was given by the State not to deport the first named applicant and her two other children until the s. 11 interviews, then scheduled for 27 th February, took place.

15

It only emerged at the adjourned hearing when the full file was before the Court that the twins' father - the first named applicant's husband - is also in the State and has been present at all relevant times. As previously stated, his application for asylum was unsuccessful and his application for leave to apply for judicial review of the RAT decision is listed for the 21 st May, 2009. The twins' s. 11 interview was subsequently cancelled by ORAC and re-scheduled for the 30 th March, 2009.

16

Last minute injunctions to avert the operation of deportation orders are becoming increasingly common despite the extensive jurisprudence of the High and Supreme Court indicating that the Courts may interfere with such Ministerial orders only where exceptional...

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