Elena Nkem Falvey, Nathan Eze Iwuoma and Steve Chidi Iwuoma v Minister for Justice, Equality and Law Reform

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date04 December 2009
Neutral Citation[2009] IEHC 528
CourtHigh Court
Date04 December 2009
Falvey (a Minor) & Iwuoma (a Minor) v Min for Justice
JUDICIAL REVIEW

BETWEEN:

ELENA NKEM FALVEY (a minor suing by her father and next friend, STEVE CHIDI IWUOMA)
NATHAN EZE IWUOMA (a minor suing by her father and next friend, STEVE CHIDI IWUOMA)
STEVE CHIDI IWUOMA
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT

AND

ATTORNEY GENERAL HUMAN RIGHTS COMMISSION
NOTICE PARTIES

[2009] IEHC 528

[No. 376 J.R./2009]

THE HIGH COURT

IMMIGRATION

Deportation

Judicial review - Leave - Certiorari - Whether substantial grounds for review - Whether deportation order made by minister with respect to failed asylum seeker subject to review - Factors to be taken in to account when making deportation order - Irish born children - Family life - Whether weight attached by minister to criminal convictions proportionate - Whether breach of Convention rights - Whether deportation of father breached rights of family - Whether decision to deport reasonable and proportionate - Y (HL) v Minister for Justice [2009] IEHC 96 (Unrep, Charleton J, 13/2/2009) distinguished; Dimbo v Minister for Justice [2008] IESC 26 (Unrep, Finlay Geoghegan J, 14/11/2006); Oguekwe v Ministerr for Justice [2008] IESC 25, [2008] 3 IR 796; Kouyape v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005); Kozhukarov v Minister for Justice, Equality and Law Reform [2005] IEHC 424 (Unrep, Clarke J, 14/12/2005); Grant v UK (Case 10606/07) (Unrep, ECHR, 8/1/2009); O v Minister for Justice [2009] IEHC 448 (Unrep, Cooke J, 14/10/2009); O v Minister for Justice [2009] IEHC 148 (Unrep, Charleton J, 11/3/2009); Agbonlahor v Minister for Justice [2009] IEHC 166, [2007] 4 IR 309 considered - Immigration Act 1999 (No 22), s 3 - Leave refused (2009/376JR - Dunne J - 4/12/2009) [2009] IEHC 528

Falvey (a minor) v Minister for Justice, Equality and Law Reform

Facts The first two-named applicants instituted judicial review proceedings seeking to challenge a deportation order made against their father (the third-named applicant). It was the case that the Minister had made a deportation order in respect the third-named applicant who was married to the mother of the second-named applicant and who was also a guardian of the first-named applicant. It was claimed that in deporting their father the respondent had failed to give proper consideration to the rights of both children under Article 40 of the Constitution and the rights of the applicants collectively under the European Convention on Human Rights. It was also contended that the respondent had relied upon the criminal convictions of the father in deciding to make the deportation order.

Held by Ms. Justice Dunne in refusing the relief sought. The function of the court in reviewing a deportation order was a limited one and was not one of a court of appeal from the decision of the Minister. The third-named applicant, having failed in an application for asylum, was not entitled to assert a choice of residence. It was not a case that the Minister only had regard to the criminal convictions of the third-named applicant in making the deportation order. The examination of the relevant file showed a careful and extensive examination of the rights of the applicants, their circumstances and the effect on them of a deportation order.

Reporter: R.F.

CONSTITUTION ART 40

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

IMMIGRATION ACT 1999 S3

DIMBO v MIN FOR EQUALITY & ORS UNREP SUPREME 4.5.2008 2008/12/2530 2008 IESC 26

OGUEKWE v MIN FOR EQUALITY & ORS UNREP SUPREME 1.5.2008 2008/51/10890 2008 IESC 25

KOUYAPE v MIN FOR JUSTICE & ORS UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

KOZHUKAROV & ORS v MIN FOR JUSTICE & ORS UNREP CLARKE 14.12.2005 2005/35/7380 2005 IEHC 424

Y (H L) & ORS v MIN FOR JUSTICE & ORS UNREP CHARLETON 13.2.2009 2009 IEHC 96

GRANT v UNITED KINGDOM UNREP 5.6.2009 APP NO. 10606/07

OSUNDE & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 14.10.2009 2009 IEHC 448

OLORUNFUMI v MIN FOR JUSTICE & ORS UNREP CHARLETON 11.3.2009 2009 IEHC 148

AGBONLAHOR v MIN FOR JUSTICE UNREP FEENEY 18.4.2007 2007/3/447 2007 IEHC 166

1

JUDGEMENT By Ms. Justice Dunne on the 4th day of December 2009

2

This is an application for leave to issue judicial review proceedings seeking an order of Certiorari quashing the deportation order made in respect of the third named applicant herein by the respondent on the 18 th February 2009 dated the 13 th March 2009 and received on 18 th March 2009.

3

The grounds upon which the relief claimed is sought could be summarised as follows:

4

1. The deportation of the third named applicant would be in breach of the constitutional and legal rights of the applicants and in particular the rights of the first and second named applicants as citizen children as provided for by article 40 of the Constitution and article 8 of the European Convention on Human Rights.

5

2. No proper consideration was given to the rights of the first and second named applicants under article 40 of the Constitution and to the rights of the applicants collectively under article 8 of the European Convention on Human Rights.

6

3. No proper consideration was given to whether the deportation of the third named applicant would be proportionate in its effect on the applicants individually and collectively.

7

4. The respondent has failed to consider the facts of the applicants case by an appropriate enquiry in a fair and proper manner as to the facts and factors affecting the family.

8

A number of other general grounds are referred to in the amended statement required to ground the application for judicial review herein. There was a ground in relation to procedural safeguards but it was not pursued before me. Finally, there was also an application for injunctive relief to restrain the respondent from acting on foot of the deportation order but that relief was refused and the third named applicant has been deported.

Background
9

The third named applicant is a native of Nigeria born on 20 th September 1986. He is now 23 years of age. He came to the state on 4 th June 2003 and applied for asylum. A recommendation was made by the Refugee Applications Commissioner that he should not be declared to be a refugee. On appeal to the Refugee Appeals Tribunal, the recommendation was affirmed and this decision was communicated to the third named applicant by letter dated 16 th March 2004.

10

On 29 th January 2005, the first named applicant was born. She is the daughter of Helen Falvey who has sworn an affidavit herein and the third named applicant. The third named applicant was appointed guardian of the child by order of the District Court made on the 12 th December 2005.

11

An application for leave to remain in the state was made on behalf of the third named applicant to the respondent by letter of 16 th February 2005 and by a subsequent letter of 29 th May 2005.

12

On 8 th July 2005 the third named applicant married Linda Duggan. A further application for permission to remain in the state on foot of his marriage was made by letter of 26 th July 2005. The marriage no longer subsists.

13

The third named applicant stated in his grounding affidavit that he received no response to the applications for leave to remain until he received notice of the making of the deportation order by letter of 13 th March 2009.

14

The second named applicant was born on 29 th January 2008. His mother is Rebecca Waldron and the third named applicant is his father. Ms. Waldron has also sworn an affidavit herein. The third named applicant was appointed guardian of the second named applicant by order of the District Court made on the 21 st October 2008.

15

The third named applicant has stated that he was involved with the upbringing of Elena and Nathan and that he saw them regularly. I should add that the affidavits of Helen Falvey and Rebecca Waldron confirm that the third named applicant is the father of their respective children and they also outline the level of his involvement with the respective children.

16

The third named applicant also made an application for subsidiary protection but he was unsuccessful in that application.

17

Finally, the third named applicant has a number of convictions to which I will refer later.

The Impugned Decision
18

I want to refer briefly to the impugned decision. The examination of file under s. 3 of the Immigration Act 1999, as amended, was enclosed with the letter which contained the deportation order. That document contained some 12 pages and set out the matters required to be considered by the respondent. I do not propose to refer to that document in extenso. However in the course of the arguments before me, reference was made to a passage at p. 10 of the examination. It would be helpful to refer to that passage at this point:

"Having considered all of the above factors relating to the position of the family, and in particular Elena Nkem Falvey and Nathan Eze Waldron, who are Irish citizens, it would appear that the applicant is playing a role in both of his children's lives. However the applicant has come to the adverse attention of the Gardai during his time in the state. On 28/08/07 the applicant was convicted under the Theft Act 2001-using false instrument and was sentenced to 4 months in St Patrick's Institute. On 7/3/07 the applicant was convicted of unlawful possession of drugs contrary to s. 3, Misuse of Drugs Act and fined €150. There is also a document on file stating that the applicant was in possession of and using false Belgian documents (passport, driving licence and identity card) in the name of Momoh Kanu, and was on bail from Limerick District Court to 27/09/07 on fraud charges. The applicant has been given an individual assessment and due process in all respects. Having read...

To continue reading

Request your trial
5 cases
  • E.B. (A Minor) v Minister for Justice and Equality
    • Ireland
    • High Court
    • 27 July 2016
    ...which Sivsivadze says exists. 47 Counsel relies on the dictum of Dunne J. in Falvey v. Minister for Justice, Equality and Law Reform [2009] IEHC 528 (albeit a leave decision) in the context of how the respondent balanced competing interests in the present case. 48 Counsel cites the decisio......
  • F.E [A Minor] and Others v The Minister for Justice and Law Reform
    • Ireland
    • High Court
    • 28 February 2013
    ...for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 applied - Falvey v Minister for Justice, Equality and Law Reform [2009] IEHC 528, (Unrep, Dunne J, 4/12/2009); F(ISO) v Minister for Justice, Equality and Law Reform [2010] IEHC 457, (Unrep, Cooke J, 17/12/2010); Alli v Mi......
  • O.A.B.(Nigeria) v The Minister for Justice and Equality
    • Ireland
    • High Court
    • 27 February 2018
    ...and Equality [2016] IEHC 468 [2016] 7 JIC 2924 (Unreported, High Court, 29th July, 2016). Dunne J. in Falvey v. Minister for Justice [2009] IEHC 528(Unreported, High Court, 4th December, 2009) referred to the right to maintain control of the State's borders as ' something which the respo......
  • D.O.M. and Others v Minister for Justice and Law Reform
    • Ireland
    • High Court
    • 8 April 2014
    ...JUSTICE & AG UNREP CHARLETON 13.2.2009 2009/58/14845 2009 IEHC 96 FALVEY & IWUOMA v MIN FOR JUSTICE UNREP DUNNE 4.12.2009 2009/20/5042 2009 IEHC 528 O (S) & ORS v MIN FOR JUSTICE UNREP COOKE 1.10.2010 2010/40/10089 2010 IEHC 343 E (F) (A MINOR) & ORS v MIN FOR JUSTICE UNREP MCDERMOTT 28.2.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT