Efe (A Minor) and Others v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 07 June 2011
• Neutral Citation: [2011] IEHC 214
• Date: 07 June 2011
• Court: High Court
• Docket Number: [2009

Efe & Ors v Min for Justice & Ors

BETWEEN

SUNDAY EFE, TEMITOPE EFE, BAMIDELEMI OLUKAYODE (A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE), AYOMIDE OLUKAYODE (A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE), ESSE-OGHEME EFE (A MINOR SUING BY HER STEP-FATHER AND NEXT FRIEND SUNDAY EFE)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND (No. 2)

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2011] IEHC 214

[No. 329 J.R./2009]

THE HIGH COURT

CONSTITUTION

Personal rights

Immigration - Deportation - Judicial review - Constitutional rights - Whether test for judicial review ensured constitutional rights protected - Whether test for judicial review provided effective remedy under European Convention on Human Rights - Additional evidence - Whether court entitled to consider additional evidence - Whether inability of court to consider additional evidence constitutional - Whether inability of court to consider additional evidence compatible with European Convention on Human Rights - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 applied; ISOF v Minister for Justice (No 2) [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010) and B v Minister for Justice [2010] IEHC 296, (Unrep, Cooke J, 14/7/2010) followed; Kay v United Kingdom (App. No. 37341/06) [2010] ECHR 1322, [2011] HLR 13, considered - Immigration Act 1999 (No 22), s 3(11) - European Convention on Human Rights Act 2003 (No 20), s 5 - European Convention on Human Rights 1950, articles 8 and 13 - Constitution of Ireland 1937, Articles 40.3 and 41 - Relief refused (2009/329, 528, 531, 511 & 763JR - Hogan J - 7/6/2011) [2011] IEHC 214

Efe v Minister for Justice

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

S (I)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 21.1.2011 2011 IEHC 31

OBOH v MIN FOR JUSTICE & ORS UNREP HOGAN 2.3.2011 2011 IEHC 102

FASHADE v MIN FOR JUSTICE UNREP HOGAN (EX TEMPORE)

ALLI-BALUGON v MIN FOR JUSTICE UNREP HOGAN 1.3.2011 (EX TEMPORE)

RSC O.84

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

CONSTITUTION ART 40

CONSTITUTION ART 34.1

CONSTITUTION ART 34.3.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

C, STATE v FRAWLEY 1976 IR 365

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

ALBION PROPERTIES LTD v MOONBLAST LTD & KILLALEA UNREP HOGAN 16.3.2011 2011 IEHC 107

CONSTITUTION ART 26

CAHILL v SUTTON 1980 IR 269

O'LAIGHLEIS, IN RE 1960 IR 93

LYNCH, STATE v COONEY & AG 1982 IR 337

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

NURENDALE LTD T/A PANDA WASTE SERVICES v DUBLIN CITY COUNCIL & ORS UNREP MCKECHNIE 21.12.2009 2009/42/10461 2009 IEHC 588

AER RIANTA CPT v CMSR FOR AVIATION REGULATION UNREP O'SULLIVAN 16.1.2003 2003/1/141

BYRNE v JUDGE O'LEARY & ORS UNREP GILLIGAN 7.12.2006 2006/9/1661 2006 IEHC 412

BUCKLEY & ORS (SINN FEIN) v AG & POWER 1950 IR 67

PHILADELPHIA STORAGE BATTERY CO v CONTROLLER OF INDUSTRIAL & COMMERCIAL PROPERTY & NV PHILIPS GLOEILAMPEN-FABRIEKEN 1935 IR 575

M & J GLEESON & CO & ORS v COMPETITION AUTHORITY & ORS 1999 1 ILRM 401

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD (NO 2) 2000 4 IR 159 2000/15/5538

CARRICKDALE HOTEL LTD v CONTROLLER OF PATENTS DESIGNS & TRADE MARKS & PHONOGRAPHIC PERFORMANCE (IRL) LTD 2004 3 IR 410

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION 2007 4 IR 70 2006/3/487 2006 IEHC 201

RYE INVESTMENTS LTD v COMPETITION AUTHORITY UNREP COOKE 19.3.2009 2009/50/12557 2009 IEHC 140

L (M) v REFUGEE APPEALS TRIBUNAL UNREP HIGH 21.1.2011 (EX TEMPORE)

CONSTITUTION ART 41

HOLLAND v GOVERNOR OF PORTLAOISE PRISON 2004 2 IR 573 2004/22/5036 2004 IEHC 208

I (CO) v MIN FOR JUSTICE 2008 1 IR 208 2007/29/5917 2007 IEHC 180

CLINTON v BORD PLEANALA & ORS (NO 2) 2007 4 IR 701 2007 2 ILRM 81 2007/9/1805 2007 IESC 19

DELANY & DONNELLY THE IRISH SUPREME COURT INCHES TOWARDS PROPORTIONALITY REVIEW 2011 PL 9

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

HILL v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1990 ILRM 36 1989/6/1686

B-M (A) v MIN FOR JUSTICE & ORS UNREP O'DONOVAN 23.7.2001 2001/1/267

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2004 2 IR 607 2004/49/11175 2004 IEHC 219

L (VCB) v REFUGEE APPEALS TRIBUNAL & ORS UNREP COOKE 15.10.2010 2010/30/7504 2010 IEHC 362

R (H)[BELARUS] v REFUGEE APPEALS TRIBUNAL (MCCABE) & MIN FOR JUSTICE UNREP COOKE 15.4.2011 2011 IEHC 151

S (P) & E (B) v MIN FOR JUSTICE UNREP 23.3.2011 2011 IEHC 92

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

CONSTITUTION ART 28

LAURENTIU v MIN FOR JUSTICE & ORS 1999 4 IR 26

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

BALKAN TOURS LTD v MIN FOR COMMUNICATIONS 1988 ILRM 101 1987/1/27

IMMIGRATION ACT 1999 S3(11)

B (J)(A MINOR) & ORS v MIN FOR JUSTICE UNREP COOKE 14.7.2010 2010/3/736 2010 IEHC 296

KAY v UNITED KINGDOM 2011 HLR 2 2011 L & TR 1 2010 ECHR 1322

MASLOV v AUSTRIA 2009 INLR 47 2008 ECHR 546

CONSTITUTION ART 40.3

1 1. In these proceedings the applicants seek to challenge a decision of the Minister where he sought to deport the first named applicant, even though the effect of that decision would be effectively to rupture - more or less permanently - his family ties with his two Irish citizen step-children. In a reserved judgment delivered on 25 ^th February 2011 I concluded that the applicants had established substantial grounds for contending that the Minister had not conducted a full and fair assessment of their case by reason, inter alia, of the fact that the file analysis had minimized the potential impact which the deportation of their step-father would have on such children. Leave to apply for judicial review of that decision was granted accordingly. It should also be noted that the couple also have a younger Irish born child and the issue as to whether the child is also an Irish citizen may also feature in the main proceedings.

2 2. At this stage of the proceedings the applicant now contend that the common law rules of judicial review are unconstitutional in that it is contended that these rules are basically ineffective to secure the protection of the fundamental rights which are engaged by the asylum and deportation process. It is further contended that in the event that these rules are found to be constitutional, the applicants are nonetheless entitled to a declaration of incompatibility pursuant to s. 5(2) of the European Court of Human Rights Act 2003 on the ground that their right to an effective remedy under Article 13 ECHR has been violated. As the pleadings were originally constituted there was no constitutional challenge. In the companion decision, S. v. Minister for Justice, Equality and Law Reform [2011] IEHC 31, I ruled that the applicants were not entitled to seek a declaration of incompatibility without having first exhausted their constitutional remedies. Leave to amend was accordingly granted in that case, this case and the other companion cases, Oboh v. Minister for Justice, Equality and Law Reform, Fashade v. Minister for Justice, Equality and Law Reform and Alli-Balugon v. Minister for Justice, Equality and Law Reform in order to allow the parties to plead the constitutional issue. The other three cases all present similar facts and issues. This judgment also governs the constitutional and ECHR issues raised in the latter three cases so far as the adequacy of the common law judicial review rules are concerned.

3 3. Before proceeding further, it is probably important to state exactly what is embraced in this description of the common law rules of judicial review. The applicants do not challenge the basic procedural rules (such as the requirements as to leave, filing of affidavits and amendment of pleadings) contained in Ord. 84 RSC. Nor do they challenge the special requirements governing applications involving the asylum and immigration process prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, this matter having in any event already been conclusively determined by the Supreme Court in its decision in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 2000 [2000] 2 I.R. 326. Instead, the applicants rather challenge the constitutionality of what might be termed the substantive common law rules of judicial review, namely, reasonableness, rationality and so forth on the ground that these rule do not provide an adequate remedy. In line with the proper sequence of issues indicated by the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform [2009] IEHC 71, [2010] 1 I.R. 635 and McD v. L. [2009] IESC 81, [2010] 2 I.R. 199, I will first deal with the constitutional issues. It is only in the event that the applicants fail to secure a declaration of unconstitutionality that I will then proceed to consider the question of a declaration of incompatibility and the ECHR.

The guarantees contained in Article 40.3.1 and Article 40.3.2

4 4. I do not propose to dwell on what is, strictly speaking, the first question which might otherwise be thought to arise, namely, whether the Constitution (and particularly...